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False Rape Statistics—Young love often reported as rape in our ‘cruel society’ – The Hindu

To,
Shrimati Maneka Gandhi,
Hon’ble Minister of Women and Child Development,
New Delhi, India.

Young love often reported as rape in our ‘cruel society’ – The Hindu

“I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said.
In January 2013, Seema (name changed), who had moved to Delhi from rural Bihar with her brother went to the Hanuman temple on Delhi’s Panchkuian Road with 19-year-old Sameer (name changed). He put vermilion on her forehead, the couple embraced and now married in their own eyes, they ran away to Sameer’s native village in Samastipur. By May, Seema, now pregnant, was in a court-mandated shelter home for young women visited only by Sameer when he got bail, accused of kidnapping and raping his young love.
The content of 600 court judgements analysed by The Hindu and interviews with complainants, judges and police officers illuminate for this first time the real stories behind the headlines on the national capitals rape statistics.
As Part 1 of the series showed, one-fifth of the trials ended because the complainant did not appear or turned hostile.
Of the cases fully tried, over 40% dealt with consensual sex, usually involving the elopement of a young couple and the girl’s parents subsequently charging the boy with rape. Another 25% dealt with “breach of promise to marry”. Of the 162 remaining cases, men preying on young children in slums was the most common type of offence.
These numbers too do not on their own illuminate the stories behind these numbers; for this, The Hindu interviewed judges, prosecutors, police officers, complainants, accused, lawyers and activists most of them under condition of anonymity because they were not free to publicly discuss confidential rape trials. What emerged were heart-rending stories and the role of the police and judiciary.
‘Teenage love drama’
Of the 460 cases dealing with sexual assault in Delhi’s district courts in 2013 that went to a full trial, 174 involved or seemed to involve runaway young couples like Seema and Sameer, The Hindu found. This was especially true for inter-caste and inter-religious couples.
Across the system, there was some amount of concern and sympathy for these consenting couples, especially among judges. Ruling on Seema and Sameer’s case in October 2013, Additional Sessions Judge Dharmesh Sharma said, “The instant case racks [sic] up a perennial problem being faced by all of us on the judicial side: what should be the judicial response to elopement cases like the instant one… This life drama is enacted, played and repeated everyday in the Police Stations and Courts…” Of the case before him, Judge Sharma noted, “This case is a teenage love drama where our dysfunctional cruel society and the justice system have separated the two love birds and have taught them a bitter lesson.”
“We get innumerable such cases in Lucknow too,” Seema Mishra, lawyer and women’s rights activists with Association for Advocacy and Legal Initiatives (AALI), said. AALI has been at the forefront of the pushing for women’s right to choose sexual relationships, which is at the heart of the 174 cases The Hindu looked at. In case after case, as well as in interviews with The Hindu, the behaviour of the girls’ parents was shocking: they arrive at the hotel the couple has eloped to and drag them home, they beat and even injure the couple (in one case breaking the girl’s spine), they threaten her even with acid, they force her to submit to invasive medical tests and in many cases, even to an abortion.
In Judge Sharma’s case, he was able to acquit Sameer since Seema was over the age of consent for sex at the time – 16 years. However now that the Criminal Law Amendment Act (2013) is in force, the age of consent now stands at 18. “I lay the blame for a lot of this at the door of Parliament,” lawyer and leading women’s rights activist Vrinda Grover said. “By raising the age of consent, they have ensured such cases of consensual sex being called ‘rape’ are just going to multiply.”
Promise of marriage
Judges, prosecutors and police officers tended to be far less sympathetic towards the other major area of concern – the 109 cases which deal with “breach of promise to marry”. The argument used by prosecutors in these cases is that if a woman had sexual relations with a man only under a false promise of marriage by him, her consent was not free as it was obtained through deceit. However in most such cases, showing that the accused never intended to marry the complainant becomes hard to prove, unless he is already married to someone else and hiding it.
“You might say it is wrong, but when the girl’s father comes to the police station and says she has been ruined, a policeman will tend to take the father’s side,” one senior Delhi police explained. More often than not, he said, the FIR was a way to force a man attempting to call off a marriage into going through with it; in a third of such cases The Hindu looked at, the woman deposed in court that they were now married and hence she no longer accused him of rape.
“Your family discovers you have been having relations with a man for five years and now he has called it off because of pressure from his family,” one complainant who lost her case explained. “Before you know what is happening, your father and uncle have gone to the police station and you are forced into this. Everyone tells you that if you do not go along with it, you will never get married,” she said.
“Frankly I think this shouldn’t be counted as rape. It comes from a patriarchal context, from the premium placed on a woman’s chastity. But if we want to talk of women’s agency, we cannot have it both ways,” Ms. Grover said, a sentiment shared by several other feminist lawyers.
Rape as we know it
The 161 remaining cases look a lot closer to what is conventionally referred to as rape. Nearly half of these involved an adult neighbour preying on a minor child of a neighbour or a vulnerable woman sleeping outdoors or alone at home, most took place in slums, and had a conviction rate of over 75%. “Mothers like me have to work all day and are not able to keep an eye on our children,” one mother who secured a conviction in the rape of her three-year-old by a neighbour, said in tears. The medical investigation and courtroom terrified her, the woman said, but her family supported her.
In such cases, the consistent testimony of the complainant played the most important role. Judges were usually willing to convict in the absence of medical evidence, and in one case, Additional Sessions Judge Renu Bhatnagar convicted a man of raping a mentally challenged minor girl even though she was unable to depose in court apart from nodding. However in at least two cases where the complainant admitted that she met the accused alone voluntarily but did not consent to sex, judges disbelieved the woman’s testimony.
The judgement in the December 16 gang-rape formed part of The Hindu’s study and was notable in its length, detail and unprecedented extent of medical evidence. It was one of only 12 rapes heard in 2013 that were alleged to have been perpetrated by strangers, and all of the others pre-dated it.
Conclusion
The stories behind Delhi’s sexual assault statistics indicate that the image created by police statistics alone might be a misleading one.
(This is part two of a three-part series. Part 3 appears tomorrow: The Journey from FIR to Judgement)
More than Society, we all must give a Big Thanks to radical Women activist like #RajKumari#ShibitaKrishan and all Mombatiwala, who advocated such Unfair, Biased LAW to promote the #Fake Cases, where any girls or Women can term any Men a Rapist only by her Verbal allegations, without any Medical Evidence with out any restrictions of time limit.

Men’s Rights Association and their associated NGO recommended Gender Natural ( replace men/women to person) , Evidence based Criminal law along with a strong Misuse Clause like Lokpal Act to the Government, but all gone in deaf ears till date.

If you make any criminal law Non-bailble , where the FIR can be registered only by Verbal allegations , such LAW will only promote the #Fakecases and#LegalTerrorism, as no one Born in Raja Harish Chandra Family , that they will never lie.

More disturbing our WCD minister without going to details of cases and find the way to protect our Child from wrongly termed rapist , propose to treat the Boys below 18 years old as adult .

Wonder if, our WCD and Government can’t reform a Child, how they will reform a country?

We once again send our proposal to WCD and request to amend the Rape law on Top Priority along with Caution, which we had bring to your notice earlier also.

Our Proposal:

If you really want the IPC376, #IPC354 should not be misused left, right and center, like the way in 498A/DV act the word “Relative” misused, amend the law as per our suggestion.
Or
Be ready the Rape statistics will be double in next two years and it will became another extortion, blackmailing and easy money earning business for all Advocate, Police and greedy people.

Summary of our Recommendations and Request to meet your MP/MLA/Ministers and demand:

1) Make Rape Law Gender Neutral as in other countries of the globe
2) Relationship cheating cases should not be allowed to be converted into rape cases which suck the scare resources from genuine rape cases.
3) False complaints of Rape cases should be punished severely, so that genuine cases like ‘Nirbhaya’, gets justice.
4) Introduce the much required police reforms and use Technology to increase conviction rates of rape cases and punish those file false cases.
· All references to “Man” or “Woman” must be replaced with the word “Person” or “Whosoever”
· All references to “His” or “Her” to be must be replaced with the word “His or Her”
· All references to “He” or “She” must be replaced with the word “He or She”
· All references to the word ‘Husband” or “Wife” must be replaced with the word “Spouse”

Your Faithfully,
MRA Amol Kurhe
Vice-President
Mens Rights Association
Pune

False rape charge lands woman in prison for 4 years that too in India…

September 3, 2013 Leave a comment

TOI:- http://bit.ly/1ag62Ve

A woman has been sentenced to four years in jail for levelling false allegations of rape against a man, who later committed suicide as he could not bear the stigma of spending 72 days in jail for a crime he did not commit.

Last December when the country was witnessing unprecedented protests against Delhi gangrape incident, 35-year-old Chanchal Rathore had accused her 53-year-old landlord, Roopkishore Agrawal, of raping her. However, during the trial, Chanchal admitted that she was not raped.

According to her, she had a quarrel with Agrawal when he had come to collect rent and the money her husband had taken as loan from him. Additional Sessions Judge Savita Dubey, who was hearing the rape case, later ordered that Chanchal be tried for giving a false statement.

The judge even appeared as a witness in the court of Additional Sessions Judge Indira Singh, who sentenced Chanchal to four years in jail under Section 211b of the IPC (making false charge of offence with an intent to injure). She has also been slapped a fine of Rs 10,000, non-payment of which will fetch another six months jail term for her.

Chanchal, who claimed to work for an NGO, was also sentenced to six months in jail under Section 182 (giving false information with an intent to cause public servant to use his lawful power to the injury of another person). Both sentences will run concurrently.

Chanchal is also being separately tried for abetment to suicide, punishable with a seven-year jail term.

Chanchal’s husband Sunil, who took the money from the landlord to buy a Tata Magic vehicle, is also an accused in this case, said Additional Public Prosecutor Hemant Mungi.

Agrawal was found dead in his home on March 17, nine days after he was released on bail. In his suicide note, he had blamed Chanchal for his ordeal and his decision to take kill himself.

Bombay HC : Affair gone bad no ground for rape charge

A love affair gone bad is no reason to charge a man who got a woman pregnant with rape, the Bombay high court has ruled. Justice Sadhna Jadhav acquitted Borivali resident Manesh Kotiyan (39) of rape charges three years after his arrest and subsequent conviction.  “The very fact that the prosecution has admitted in the cross-examination that she had a love affair with the accused and she desired to marry him. In these circumstances, offence underSection 376 of the IPC (rape) would necessarily fail,” said Justice Jadhav ruling that the rape charges against Kotiyan were “unsustainable”.  The court went through the prosecution case and noted that the accused had proposed to the girl. “The complainant is an educated adult person,” said the judge. “She was fully aware of the fact that he (Kotiyan) was attracted to her. She chose to accompany him to Gorai. She also checked into a hotel to celebrate his birthday. She was aware of the consequences,” said the judge.
 

 

 

 

Bombay High Court

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL APPEAL  NO.  892  OF 2012

Manesh Madusudan Kotiyan
Age: 39 yrs. Occ. Service.
R/o. Room No.2, Manik Patil
Chawl, Eksar Road, Koliwada,
Borivali (West), Mumbai 400 103. …   Appellant.
Versus
1.  The State of Maharashtra
(at the instance of MHB Colony
Police Station, Mumbai in
C.R. No. 77 of 2010 tried in
Sessions Case No. 67 of 2010)
2   Miss. Smita Radhakrishna Kerkar
Age : 28 years, Occ. Service.
R/o Room No. 2, D.B. Kelkar Chawl,
Navagaon, Dahisar (East),
Mumbai 400 068. …   Respondents.
­­­
Mr. Arfan Sait, Advocate appointed for Appellant.
Ms. A.T. Javeri, APP for Respondent No. 6­State.
­­­
CORAM : SMT. SADHANA S. JADHAV, J
DATE     : JULY 2, 2013
JUDGMENT:

1. The   appellant   herein   is   convicted   for   the   offence              punishable under Section 376 of the Indian Penal Code and is sentenced to suffer R.I. for 7 years and to pay fine of Rs. 5,000/­ i.d. to suffer R.I. for one month.  He is also convicted for the offence punishable under Section 417 of the Indian Penal Code and is sentenced to suffer R.I. for one year and to pay fine of Rs. 1,000/i.d. to suffer R.I. for one week in Sessions Case No. 67 of 2010 by Additional Sessions Judge, Boriwali Division, Dindoshi, Mumbai.  Hence, this Appeal.

2. Such of  the  facts which  are necessary  for  the decision of  this appeal are as follows :
(i) That  one  Smita  Radhakrishna  Kerkar was  working  at  Virodhi  Stationery Shop at I.C. Colony, Borivali, Mumbai.  The appellant was also working there.  After Smita left the job, the appellant had also quit the job.  They started working at Balaji  DTP Xerox Centre.  On one fine day, the appellant proposed Smita.  She accepted his proposal. They quit the job of Balaji DTP Xerox Centre and  the appellant  again started working with Virodhi Stationery Shop.  Their acquaintance had turned into intimacy.   On 5/11/2009 it was Sunday.   The appellant had invited her informing her that it was his birthday.  Smita went to meet him at the bus stop.  Then they both went to Gorai beach.  They checked in into a guest house in Gorai village to cut the cake on the occasion of his birthday.  The appellant allegedly informed her that he wanted   to   marry   her   and   on   that   ground   he   had   solicited   sexual
favours from Smita.  Initially when she refused to oblige, he forced her and had forcible sexual intercourse with her.  Thereafter, they did not see each other for 2­-3days.  The appellant had been to Manglore for one month.  Smita tried to contact him on his cell phone.  His brother received the phone.  Smita learnt from his brother that the appellant was a married man and was having a son.  However, the wife and son of the appellant were not residing with him.

(ii)The prosecution has further alleged that one day, the appellant called her on Boriwali Railway Station.  She was accompanied by her mother.  The appellant admitted that he was married man and having a son.  He sought pardon from the mother and daughter.  He informed them that his wife had filed proceedings in the court against him.

(iii) On   8/3/2010   Smita     suspected   that   she   has   conceived   and therefore,   visited   the   doctor.     Upon   medical   check   up,   the doctor informed her that she was carrying pregnancy of about 16 weeks.  She informed the appellant about the same, upon which he told her that he would obtain divorce from his wife after 3 months and then he would marry her.  It is alleged that he had avoided to marry her.  He had not answered   her   phone   call   and   therefore,   on   27th  March,   2010   she
approached M.H. B. Colony Police Station and lodged the report.  On the basis of her report Crime No. 77 of 2010 registered against the appellant for offence punishable under Section 376, 420 of the Indian Penal Code.  The appellant was arrested on 27th March, 2010 and has been in jail since then.  The investigation was completed.  Charge­sheet was filed.

(iv) The case was committed to the Court of Sessions and registered as   Sessions   Case   No.   67   of   2010.     The   prosecution   examined   6 witnesses to bring home the guilt to the accused.

3 In  fact,  the entire  case  rests  upon  the  substantial evidence  of P.W. 2 Smita who happens to be the complainant.  She has deposed before the Court as per her narration in the first information report. She has deposed in her examination in chief that when she met the accused  at Boriwali Station  alongwith  her mother,  the  accused had expressed  his  willingness  to  marry   her.    She  has  admitted  that  in March,  2010  she  had  suspected  that  she  had  conceived  pregnancy. The doctor had informed her that she was carrying pregnancy of about
4 months.  Upon learning about her pregnancy the accused had told her that the divorce petition is pending in the court and therefore, they should wait for 3 months to get married.  He had also assured her that he would marry her after obtaining divorce from his first wife.  On 27th March, 2010, he had received a phone call  from her.   However, he gave   evasive   answers   and   therefore,   Smita   was   constrained   to approach M.H.B.  Colony Police Station.

4 It is  pertinent  to  note  that in  the  cross­examination,  she  has categorically deposed that when the accused proposed to her she had not made any attempts to enquire about him.  She has disclosed this fact to her mother after one month.  In the cross­examination, she was confronted   with   her   statement   before   the   police.     In   the   first information report she had not expressed any coercion on the part of the accused.  Instead, she has stated that he had lured her  and they had   sexual   intercourse   and   thereafter,   they   both   returned   to   their  respective homes. The contradiction is marked as portion marked “A”.

5 The omission is elicited in the cross­examination in respect of her
meeting   the   accused   on   27th  March,   2010.     She   has   categorically admitted   that   she   had   love   affair   with   the   accused   and   in   the eventuality that he is ready to marry her she is desirous to marry him.
Hence, it is clear from her deposition that on 27th March, 2010 she had lodged the FIR in a fit of rage.

6 P.W. 3 Mrs. Sanjivani Radhakrushna Kerkar, mother   of Smita  has deposed before the Court that her daughter had informed her that she was in love with  the    appellant  and desired  to marry him  and therefore,  she  had  been  to  Boriwali   Station  to meet  the  appellant.  P.W. 3 learnt that the accused was a married man but she was assured that he would be  taking divorce  from his  first wife and would  then marry Smita.  P.W. 3 has admitted that she learnt about pregnancy of Smita   only   when   she   was   four   months   pregnant.     She   has   also admitted that  although Smita had asked her to make enquiry about
the appellant, she had not made any enquiry about the appellant since Smita was in love with the appellant.

7.It is clear from the testimony of P.W. 2 that she was in love with him.  She had voluntarily visited Gorai village with him.  She had not informed her mother as to what had happened at village­Gorai.  She  has not specifically stated the date on which they had been to village Gorai.     She   has   stated   that   she   was   persuaded     to   have   sexual intercourse.  It is pertinent to note that the appellant had never denied  to get married to her.  It is clear that right from the inception he had intended to marry her.  Even P.W. 2 has admitted that he had informed her that he intends to marry Smita only after he has obtained divorce with his first wife.  Therefore, it cannot be said that the appellant had made the representation deliberately with a view to elicit the assent of the victim without having the intention or indication to marry her and therefore, the consent given by her would  not be  vitiated.  Right from
the inception the appellant wanted to marry her.   The question that  falls for determination is as to whether she was forced to have sexual intercourse with him.  What needs to be distinguished is whether the accused   exerted     coercion.     According   to   the   prosecutrix,   she   had  sexual intercourse with him only because he had assured her that he would marry her.  Since there was an intention to  marry her, it cannot be said that the consent was given under a misconception of fact.

8 In Strouds Judicial Dictionary, Stroud defines consent “as an act of reason weighing as in a balance the good and evil on each side.” In Words and Phrases, Permanent Edn Vd 8­A the following passage is found­
“Adult   females   understanding   of   nature   and   consequences   of Sexual   Act   must   be   intelligent   understanding   to   constitute consent.”
The Hon’ble Apex Court in  the case of  Dilip v/s. State of Madhya Pradesh  has held that ­ “Consent within penal law, defining  rape,  requires exercise  of intelligence based on  knowledge of it’s  significance  and moral quality   and   there   must   be   a   choice   between   resistance   and assail.”

9 In the present case, the complainant is an educated adult person. The appellant had proposed to her.   She was fully aware of the fact that the appellant was attracted to her.  She chose to accompany him to Gorai.  She also checked into a hotel to celebrate his birthday.  She was aware of the consequences.  She had not cried for help and had not  taken  her  resistance  to  a logical end.   Hence, it would  not  be  justifiable to hold that the consent was obtained by intimidation, force meditated   imposition,   circumvention   surprise   or   undue   influence. Hence the conviction of appellant for offence punishable under Section  376 of the Indian Penal Code would not be sustainable.

10 It   appears   from   the   deposition   of   the   complainant   that   the  appellant had not disclosed to the complainant at the outset that he was a married man and  father of one son and further that his first wife had filed proceedings against him in the court and this suppression of fact would amount  to cheating as defined under  the Explanation of Section 415 which reads thus :
“Explanation­ A  dishonest  concealment  of  facts is  a  deception
within the meaning of this section.”

Therefore this Court held that the appellant by suppressing the fact has cheated   the   complainant.       He   has   been   convicted   for   offence punishable under Section 417 of the Indian Penal Code which needs to be upheld.

11 The very  fact  that  the prosecutrix has  admitted   in  the cross­ examination   that   she   had   a   love   affair   with   the   accused   and   she desired to marry him.  In these circumstances, offence under Section 376 of the Indian Penal Code would  necessarily fail.  It cannot be said that the accused had committed sexual intercourse at false promise of marriage.   He was willing  to marry her.   The impediment was  the proceedings filed by the first wife of the appellant.  Even according to the  complainant,  the  appellant  had  assured  her  that  he would   get married   to   her   after   obtaining   divorce   from   his   first   wife.     The prosecutrix had not even informed her mother that she was carrying pregnancy for a period of 4 months.  The prosecutrix had given birth to a female child in August, 2010.  The FIR was lodged on 27th March, 2010 and the appellant was taken  into custody.  It cannot be said that the appellant had at any point of time disowned the paternity of the child.  He is in jail since 27th March, 2010.

12 For the aforementioned reasons,  following order is passed :
ORDER
(i) The Appeal is partly allowed.
(ii) The appellant herein is acquitted of the charge under Section 376 of the Indian Penal Code.
(iii) The conviction of the appellant for the offence under Section 417 of  the  Indian  Penal  Code is  hereby   confirmed.     The  appellant  has undergone the sentence imposed upon him for the offence punishable  under Section 417 of the Indian Penal Code.  He has also undergone the default sentence.
(iv) He be released forthwith, if not required in any other case.

13 Criminal Appeal is disposed of accordingly.

14 Before parting with the Judgment, this Court record appreciation
for the efforts taken by Mr. Arfan Sait, Advocate appointed from High
Court Legal Services Committee, Bombay  to represent  the appellant.
The legal  fees  to be  paid  to  him  by  the High Court  Legal  Services
Committee   are   quantified   at   Rs.   2000/­.   The   said   fees   be   paid   to
Advocate Mr. Arfan Sait within three months from today.
(SMT. SADHANA S. JADHAV, J)

Wife who got daughter to file false rape charge against dad earns high court wrath

April 29, 2013 3 comments
Bombay high court’s Aurangabad bench chided a woman for getting her 12-year-old daughter to file false rape charges against her estranged husband. “It is a shocking event that a teenager was used as a lever against her father. The teenager had put her esteem at stake, but it was instrumentality of her mother which, indeed, proved fatal for smooth family life,” Justice KU Chandiwal observed.

“Memories of sexual assault are difficult to control and they disrupt daily life of victim,” the court observed before acquitting the father who was languishing in Aurangabad central jail since 2010. The Aurangabad-based teenager had a lodged a complaint on January 20, 2010, that her driver father, 32, had raped her two months earlier and made another attempt a day earlier. Offences under Sections 376 and 506 of IPC were registered against the man.

After medical examinations, the father was convicted by the sessions court on February 12 last year. He challenged this verdict in the high court pleading there was matrimonial discord and disharmony between him and his wife and the daughter was being used as a stooge. He further claimed that his wife had instigated the daughter to accompany her to police station and lodge a false FIR.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.406 OF 2012

 

Shaikh Sheru s/o. Shaikh  Turab,
age 32 years, occ.Driver,
R/o.Shahnurwadi, Aurangabad
at present r/o. Central Jail,
Harsool, Aurangabad ..Appellant
Versus
The State of Maharashtra ..Respondent
………
Mr.S.P.Tilve, advocate for appellant.
Mrs.R.K.Ladda, APP for respondent – State.
………
CORAM    : K.U.CHANDIWAL, J.
JUDGMENT RESERVED ON  : MARCH 20, 2013
JUDGMENT PRONOUNCED ON : APRIL 02, 2013
JUDGMENT :
Appeal   was   admitted   on   27th  June,   2012.
Appellant   is   in   jail   from   20th  January,   2010, consequently, preference is given.
FACTS :­
2] The appellant has, allegedly, two months prior to the FIR dated 20th  January, 2010 (Crime No.I­27 of   2010),   has   committed   rape   on   his   12   years’ daughter   (prosecutrix).       He   again   desired   such sex   on   19th  January,   2010,   which   was rebuked   and disliked   by   the   prosecutrix.     She   ran   away   and informed   her   mother,   giving   rise   to   FIR   for offence under Sections 376, 506 and also 376 read with 511 of Indian Penal Code.
3] After   FIR,   spot   panchnama   was   drawn.     The prosecutrix   and   the   accused   –   appellant   were medically   examined   including   radiology   test   to determine   her   age.     The   seized   samples   were forwarded   to   regional   forensic   lab   and   since   it revealed   that   the   accused   has   committed   offence, he   was   charge   sheeted   before   learned   Chief Judicial Magistrate, Aurangabad on 14th  June, 2010 and it was committed to the Court of Sessions at Aurangabad for trial.   Charge below Exhibit 3 was explained to the accused – appellant.   He did not plead guilty and claimed to be tried.  His defence was, there was matrimonial discord and disharmony between him and his wife; the daughter is stooge of his wife.   His wife instigated the prosecutrix to   accompany   her   to   police   station   and   lodged   a false FIR.
4] Six witnesses were put in by the prosecution. PW 1 is prosecutrix.   PW 2 – Sk. Anwar Sk. Sheru was the panch for panchnama Exhibit 22.   PW 3 is Shamim Begam Shaikh Ayub, mother­in­law of accused and mother of Ruksanabi.  Prosecutrix is her grand daughter.       PW   4   –   Shriniwas   Hanumant   Khandekar had   carried   investigation   in   the   matter,   had arrested the accused – appellant, had sent seized articles to the office of Chemical Analyser under forwarding letter Exhibit 31.   PW 5 is Dr.Vikram
Samadhan   Lokhande.     He   had   examined   the prosecutrix   and   tendered   his   report   Exhibit   35 dated 21st January, 2010.   He had collected venous blood, pubic hair, nails and vaginal smear of the prosecutrix   and   had   also   addressed   letter   to   the
Chemical Analyser for analysing samples.   PW 6 is Dr.Pankaj   Ramrao   Ahire,   Radiologist,   who   had examined the prosecutrix on 22nd  January, 2010 and according   to   him,   her   radiological   age   was   14 years (Exhibit 43).

5] On   analytical   assessment   of   evidence, following points appear not in dispute :
a) The   prosecutrix   is   daughter   of   appellant   and Ruksanabi, aged 12­-14 years.
b) PW 3 Shamim Begum is real mother of Ruksanabi and grand mother of the prosecutrix.
c) There   was   discord   between   the   couple   ensuing in   heated   arguments   on   the   point   of   Ruksanabi engaged as scrap picker or the appellant consuming liquor.
d) The   couple   is   also   blessed   with   two   sons, Salman and Arbaz, who were present in the hut on the day of incident.
e) The hut / room is small, hardly able to occupy 4­5 persons, rented.
f) Medical Officer did not notice any injuries on private part of the victim or any sense or sign of ravishing her sexually.
g) PW   3   Shamim   Begum   accepted   in   the   evidence that false FIR was lodged against the appellant at the instance of her daughter.

6] It   is   a   shocking   event,   that   a   teen,   the prosecutrix, has been used as a lever against her father.     The   defence   witness   Sk.   Rafique   (DW   1) and   Shaikh   Afsar   (DW   2)   are   acquainted   to   the couple as Sk. Rafique was landlord of Shamim begum ,and house of Ruksanabi was at some distance from his   house.     He   explained   about   regular   quarrels between   the   accused   and   Ruksanabi   on   account   of later   collecting   scrap.     After   such   quarrels, Ruksanabi used to come to her mother Shamimbi and extend   threats   of   criminal   prosecution   to   the appellant.       DW   2   Shaikh   Afsar   is   cousin   of Ruksanabi.     He   used   to   reside   in   nearby   area   in the   house   of   Sk.   Rafique.     DW   2     Shaikh   Afsar referred to discord between the couple.  Ruksanabi extended   threats   of   criminal   prosecution. Ruksanabi   even   conveyed   him   of   filing   a   criminal case of accusation of rape on prosecutrix against her   husband.     DW   2   Shaikh   Afsar   says,   Ruksanabi has filed false criminal case against the accused.

7] It is settled legal position that “if evidence of   prosecutrix   inspires   confidence,   it   must   be relied   upon   without   seeking   corroboration   of   her statement   in   material   particulars.     If   for   some reasons   the   Court   finds   it   difficult   to   place
implicit   reliance   on   her   testimony,   it   may   look for   evidence   which   may   lend   assurance   to   her testimony”.

8] Hon’ble   Supreme   Court   has   observed  in   the matter   of  State   of   Punjab   Vs.   Gurmeet   Singh   and others,   1996(2)   SCC   384,   “The   courts   must,   while evaluating evidence, remain alive to the fact that in a case of rape, no self­respecting woman would come forward in a court just to make a humiliating statement   against   her   honour   such   as   is   involved in   the  commission   of   rape   on   her.   In   cases involving   sexual  molestation,   supposed considerations   which   have   no   material   effect   on the   veracity   of   the   prosecution   case   or   even  discrepancies in the statement of the prosecutrix should   not,   unless   the   discrepancies   are   such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.”

9] In cross­examination, the prosecutrix candidly accepts, at the time of sexual abuse in the hut, her   two   younger   brothers   were   sleeping,   however, inspite of her yelling, they did not awake.   The room   is   in   cluster,   consequently,   commotion     was
audible, but nobody turned forward.   There is no explanation from the prosecution as to why Salman and Arbaz, the two children in the room present at the   time   of   alleged   rape,   are   not   examined.     If they were in slumber, still there was no harm for the   prosecution   to   put   in   before   the   Court.     If the prosecutrix, at her tender age of 12­-14 years, not   used   to   sex,is sexually   abused   by   grown   up person   like   her   father   (appellant),   the unfortunate   implications   are,   to   suffer   profuse bleeding   to   her   private   part   or   to   witness injuries   nearby   area   including,   swelling   and rupture.     Nothing   of   this   sort   has   taken   place. The   prosecutrix   is   unable   to   explain,   what   made  her not to retort against her father to her mother who, knowingly, was on cross terms.     Her keeping silence for two months, after so called rape, is suggestive of falsehood, rather than screening the evidence.     She   did   not   demonstrate   her   annoyance to her peers or grandmother (PW 3).   No plausible answers   are   forthcoming.     It   may   be   that   the prosecutrix   was   experiencing   symptoms   of   acute trauma   soon   after   ravishing,   but   such   trauma cannot be expected to extend for over two months. The   couple   locked   horns   and   had   tantrums.     The intrigue   memories   of   sexual   assault   are   normally difficult to control which disrupts daily life of victim. Nightmare   flashbacks   after   such   event, are   not   indicated.   Her   evidence   coupled   with evidence of PW 3 and defence witnesses appears to be a catalogue of  events in chronological form to a hypothesis of false implication of appellant for no event   of   sexual   abuse. The   prosecutrix   had put   her   esteem   at   stakes,   but   it   was instrumentality   of   her   mother   which,   indeed, proved   fetal   for   the   smooth  family   life.        The evidence   of   prosecutrix   does   not   inspire confidence   to   bank   upon.       The   medical   evidence does   not   support   that   she   had   suffered   sexual abuse or that she was a sex victim, even delayed examination by two months, showed she was not used to sex.

10] The   learned   Addl.   Sessions   Judge   recorded affirmative   findings   for   sexual   abuse,   inviting infraction of Sections 376 and 506 of Indian Penal Code,   however,   he   did   not   believe   later   event dated   19th  January,   2010   of   appellant   insisting
prosecutrix   for   sex   for   second   time   to   invite Section 376 read with 511 of Indian Penal Code or attempt   to   commit   rape   inviting   Section   376   read with 511 of Indian Penal Code. The evidence, as a whole,   does   not   demonstrate   that   the   victim   was sexually abused, least by her father / appellant.

11] Criminal Appeal allowed.   Conviction recorded in Sessions Case No.169 of 2010 by learned Addl. Sessions Judge­3, Aurangabad, dated 29th  February, 2012,   is   set   aside.     Accused   /   appellant   be released   forthwith,   if   not   required   in   any   other case.
[K.U.CHANDIWAL, J.]
kbp

Employee of Ministry of Commerce acquitted by Delhi Session Court after finding that the charges of Rape, Abortion were False

April 19, 2013 4 comments

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
JUDGMENT
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 [3] 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

Madhya Pradesh HC:- DNA report which proves that the MAN is responsible for Child, is itself sufficient to Quash the proceedings of RAPE.

February 21, 2013 Leave a comment

M.Cr.C. No. 9896/2010

 

MADHYA PRADESH HIGH COURT

M.Cr.C. No. 9896/2010

12.2.2013

 

 

CHANDRA SHEKHAR DUBEY

Vs

THE STATE OF MADHYA PRADESH

 

Shri S.C.Datt, Sr. Counsel with Shri Nishant Datt for the petitioner.

Shri Sameer Chile, PL for the State.

Coram:- Shri Anil Sharma, J

Arguments heard.

Earlier registered as Criminal Revision No. 1255/2001 and it was ordered to be converted into the petition under Section 482 of the Cr.P.C. by this Court vide order dated 15.9.2010.

The  petitioner  has  filed  this  petition  invoking  the extraordinary jurisdiction of this Court under Section 482 of the Cr.P.C. for quashing and setting aside the order of framing of charge dated 1.12.2001 passed by learned Additional Sessions Judge/Special Judge, Hoshangabad in S.T. No. 62/2001 pending in the trial Court for the offence punishable under Section 376 of the IPC read with Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act, 1989.

Learned Sr. Counsel for the petitioner has challenged the order of framing the charge on the ground that the DNA test was conducted by the prosecution agency and report of which has been filed along with the chalan. The DNA report  shows that the petitioner is not the biological father of the child of prosecutrix Raghuvanti Bai. Learned Sr. Counsel has also drawn attention of this Court towards the report (Annexures 3 and 4) submitted by the President, M.P. Rajya Anusuchit Janjati Aayog after taking the statement of prosecutrix and other witnesses, according to which the allegation of commission of rape or sexual intercourse resulting into pregnancy of complainant, has been found false.

The complainant has alleged in her complaint that the petitioner has committed rape on her several times resulting in her pregnancy but she has not been able to mention the name of the Forest Officer responsible for pregnancy. She only uttered the name “Ranger Sahab”. It has also been found that ealier also she became pregnant twice under suspicious circumstances and she tried to settle the dispute for amount of Rs. One Lac, which has not paid, therefore, she falsely implicated the petitioner.

The  allegation of complainant is that the boy was born due to commission of rape by the petitioner only and as per the DNA report the petitioner is not the biological father of son of the prosecutrix, which shows that the prosecutrix was having bodily  relations  with  some  other  person.  The case  of  the petitioner falls under circumstances Nos. 1, 5 and 7  laid down by  the  Apex  Court  in  the  case  of  State  of  Haryana  Vs. Choudhary Bhajan Lal – 1992 AIR SCW 237.  The relevant circumstances are reproduced below :-

In  following  categories  of  cases, the High Court may in exercise of powers under Art. 226 or under S. 482 of the Cr.P.C. may interfere in proceedings relating to cognizable offences  to  prevent  abuse  of  the process of any Court or otherwise to  secure  the  ends  of  justice.

However,  power  should  be exercises sparingly and that too in the rarest of rare cases.

1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face  value  and  accepted  in their  entirety  do  not  prima  facie constitute any offence or make out a case against the accused.

2)………………………..

3)……………………….

4)……………………….

5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can  ever  reach  a  just  conclusion that there is sufficient ground for proceeding against the accused.

6)………………………

7)  Where a criminal proceeding is manifestly attended with mala fide and/or  where  the  proceeding  is maliciously  instituted  with  an ulterior  motive  for  wreaking vengeance  on  the  accused  and with  a  view  to  spite  him  due  to private and personal grudge.

Considering the DNA report, no offence under Section 376 of  the  IPC  or  Section  3(1)(xii)  of  the  SC/ST  (Prevention  of Atrocities) Act is made out against the petitioner. Even if the report of the President, M.P. Rajya Anusuchit Janjati Aayog is not taken into consideration, the DNA report itself is sufficient to quash the proceedings under Section 482 of the Cr.P.C. Thus, in my opinion, the learned trial Court is not justified in framing the charge under Section 376 of the IPC or under Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act.

Resultantly, the petition is allowed. The impugned order is hereby set aside. The petitioner is discharged from the charges under Section 376 of the IPC and Section 3(1)(xii) of the SC/ST (Prevention of Atrocities) Act.

 

Let a copy of this order be sent to the trial Court for information and necessary action.

 

(Anil Sharma)

 

Judge

 

PB

Supreme Court Acquits two from the False Rape charges and also warns lower courts to beware of False Rape cases….

January 28, 2013 1 comment

The apex court, in its landmark judgment, had asked the courts to be careful and see that a person is not convicted on charged with rape on the basis of false testimonies by alleged victims.

A bench of Justices RV Raveendran and B Sudershan Reddy noted, “The courts should bear in mind that false charges of rape are not uncommon.”

“There have been rare instances where a parent has persuaded a gullible or an obedient daughter to make false charge of rape either to take revenge or extort money or to get rid of financial liability,” judges said as it acquitted one Radhu from Madhya Pradesh, who was sentenced to seven-year imprisonment for raping his niece.

“Whether the victim was raped or not, itultimately depend on the facts and circumstances of each case,” they said while refusing to accept the victim’s statement that had many discrepancies. The medical evidence too didn’t corroborate that she had been subjected to intercourse.

 

SUPREME COURT OF INDIA

Appeal (crl.) 624 of 2005

PETITIONER: Radhu

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 14/09/2007

BENCH:
R. V. Raveendran & B. Sudershan Reddy

JUDGMENT:

J U D G M E N T

RAVEENDRAN, J.

In this appeal by special leave by the accused, the judgment of the  High Court of Madhya Pradesh dated 12.9.2003 in Criminal Appeal No. 270  of 1993, affirming the judgment dated 25.5.1993 in Sessions Trial  No.127/1991 passed by the II Additional Sessions Judge, Khargone,  convicting and sentencing the accused under sections 376, 323 and 342/34, is under challenge.

2. In brief the prosecution case is as follows : On 28.1.1991 at about 8  p.m., prosecutrix Sumanbai, went to a shop for purchasing some groceries.  On her way to the shop, Gyarsibai, a relative, invited her to come inside her  house. When she entered Gyarsibai’s house, her son Radhu who was in the  room came out, dragged her inside the room and confined her in the room  during the entire night. During the night, he sexually assaulted her by inserting his penis in her vagina twice. When she cried, Radhu gagged her mouth with a piece of cloth. Radhu freed her only the next day (Tuesday) morning. She went back to her house and told her mother Lalithabai (PW-4) about the incident. As her father Mangilal (PW-7) had gone out of town, her mother sent Dinesh to inform him about the incident. When her father returned on 30.1.1991, she along with her father went from their village Umarkhali to Barud where they met their relative Ram Lal and his wife and Gulabbai (PW-5) and she told Ramlal about the incident. Thereafter, they also accompanied her and her father to the Barud Police Station where her oral report was recorded by the officer in charge of the Police Station (PW9) as a First Information Report (Ex.P5).

3. Sumanbai was sent to Dr. Vandana (PW-8), a lady surgeon in the Main Hospital, Khargone for examination. She examined her and recorded her findings as per Ex. P8. She also advised x-ray to decide her age. On 1.2.1991 an x-ray was taken by Dr. Khan (PW-1) who gave a report (Ex.P-1) opining that Sumanbai was aged between 13 to 14 years. The Investigating Officer (PW-9) took up investigation and prepared a site plan P-10. Radhu was arrested on 19.2.1991 and sent to Khargone Hospital for medical examination. Dr. Sanjay Kumar Bhat (PW-2), examined him and opined that Radhu was aged about 19 years and capable of sexual intercourse. His mother Gyarsibai was also arrested. Radhu was charged to stand trial for offences under sections 342/34, 376 and 323 IPC. His mother was charged under section 342/34 and 376/34 IPC. Eleven witnesses were examined. After appreciating the evidence, the trial court by judgment dated 25.5.1993 found the accused 1 and 2 guilty and sentenced them to seven years imprisonment with fine of Rs.500 and in default to a further period of six months RI under, section 376 and 376/109 IPC respectively. They were also sentenced to six months RI under section 342/34 IPC. In addition, Radhu was sentenced to six months RI under section 323 IPC. All sentences were  to run concurrently.

4. Feeling aggrieved the two accused filed an appeal before the High Court. During the pendency of the appeal Gyarsibai died. The High Court by judgment dated 12.9.2003 dismissed the appeal, affirming the conviction and sentence of the first accused Radhu. In this appeal, challenging the said decision, the learned counsel for the appellant urged the following contentions:

(i) The accused were falsely implicated by Sumanbai at the instance of  her father who was indebted to Radhu’s father Nathu, to avoid repayment of the debt.

(ii) The medical evidence showed that there was no injury on the private parts of Sumanbai and that the rupture of hymen was old. The Doctor (PW-8) also stated that she could not express any opinion as to whether a rape had been committed or not.

(iii) The discrepancies in the evidence, absence of corroboration, the close relationship (the prosecutrix described Radhu as her maternal uncle, as Radhu’s parents were Kaka and Baba of Sumanbai’s mother) and the manner in which the incident is alleged to have taken place, clearly demonstrated that it was a false charge.

On the other hand, the learned counsel for the State submitted the concurrent findings recorded by the trial court and High Court were based on the evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear and convincing. She also pointed out the prosecutrix (PW 3), her mother (PW4) and father (PW7) had denied any indebtedness to Radhu’s faher and there was nothing to show that the prosecutrix had falsely implicated the accused. It was submitted that this Court while exercising jurisdiction under Article 136 of the Constitution will not interfere with the findings of fact recorded by the lower courts, unless the decision appealed from, shocked the judicial conscience of the court.

5. It is now well settled that a finding of guilt in a case of rape, can be based on the uncorroborated evidence of the prosecutrix. The very nature of offence makes it difficult to get direct corroborating evidence. The evidence of the prosecutrix should not be rejected on the basis of minor discrepancies and contradictions. If the victim of rape states on oath that she was forcibly subjected to sexual intercourse, her statement will normally be accepted, even if it is uncorroborated, unless the material on record requires drawing of an inference that there was consent or that the entire incident was improbable or imaginary. Even if there is consent, the act will still be a ’rape’, if the girl is under 16 years of age. It is also well settled that absence of injuries on the private parts of the victim will not by itself falsify the case  of rape, nor construed as evidence of consent. Similarly, the opinion of a doctor that there was no evidence of any sexual intercourse or rape, may not be sufficient to disbelieve the accusation of rape by the victim. Bruises, abrasions and scratches on the victim especially on the forearms, writs, face, breast, thighs and back are indicative of struggle and will support the allegation of sexual assault. The courts should, at the same time, bear in mind that false charges of rape are not uncommon. There have also been rare instances where a parent has persuaded a gullible or obedient daughter to  make a false charge of a rape either to take revenge or extort money or to getrid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of each case.

6. Sumanbai (PW-3) stated in her evidence that when she entered the hut of Gyarsibai responding to her invitation, Radhu who was inside the hut, shut the door and forcibly committed rape by inserting his penis twice; that when she started crying, Radhu gagged her with cloth and kept her confined in the room during the night and released her only the next day morning; and  that thereafter she went and informed her mother as to what happened. This version is in consonance with her report of the incident recorded in the FIR (Ex.P5) which was read over and accepted by her in her evidence. Lalithabai (PW-4) stated that when her daughter returned on Tuesday morning and told her that Radhu had raped her by force the whole night. Significantly, the prosecutrix, in her cross-examination, has given a completely different version. She stated that when Radhu committed the ’bad’ act by inserting his penis twice, she fainted and remained unconscious throughout the night; that she came back to her senses only the next day morning; that she did not know what happened during the night; that when she regained consciousness and walked out of the place, Radhu was present but Gyarsibai was elsewhere. She also asserted that she told the police that she had become unconscious when the ’bad’ act was committed. If she lost consciousness when the alleged act was committed, and if she regained consciousness only the next morning and left the house of Gyarsibai without any obstruction, the prosecution case that the prosecutrix was gagged by Radhu, that the prosecutrix was confined in his house during the entire night by use of force by Radhu, that she was freed by Radhu only the next morning, becomes false.

7. In her examination-in-chief, Sumanbai categorically stated that Gyarsibai called her to her house when she was going to the shop of Sony for buying sugar and tea. In her oral report of the incident registered as FIR (Ex.P5), she had stated that she went to Gyarsibai’s house, while on the way to the shop. But in the cross-examination, she stated that Gyarsibai called her when she was coming back from the shop after purchasing tea and sugar. She also stated that she could not tell the value of the goods purchased by her at that time. Thus, the prosecution case that the incident occurred when she was going to the shop to purchase tea and sugar is not proved.

8. Sumanbai stated that the incident took place on Monday night, that she returned on Tuesday morning and her father returned on Wednesday, that she and her father went to the house of Gulabbai and Ram Lal at Barud and she narrated the incident to Ramlal, that Ramlal also accompanied them to the Barud Police Station. Sumanbai’s mother Lalita Bai (PW4) also stated that on Wednesday her husband took their daughter Sumanbai to Barud Police Station, and that after returning from the Police Station, her husband told her that they had also taken her brother Ram Lal, who resided at Barud, to the Police Station. Mangilal (PW-7) father of Sumanbai, did not mention about Ram Lal or his wife Gulabbai in his examination in chief. However, in his cross-examination, he stated that he went to the house of his relative Ramlal at Barud and Ramlal accompanied them to the police station. But, Ram Lal was not examined. Ram Lal’s wife Gulab Bai, examined as PW-5, was declared hostile and she denied that Mangilal and Sumanbai visited their house and informed them about the incident. She also stated that neither she nor her husband accompanied Sumanbai to the Police Station. Therefore the prosecution case that Sumanbai and her father informed Ramlal about the incident on 30.1.1991 appears to be doubtful.

9. Sumanbai’s mother Lalithabai states that when Sumanbai did not return on Monday night, she and her son-in-law Ramesh searched for her up to 3 a.m. on Tuesday morning. In her cross-examination, she stated that she searched for Sumanbai in the village, and that she also asked Gyarsibai about Sumanbai. In the cross-examination, she stated that she did not remember whose houses she went to enquire about her daughter, and that she did not remember whether she had gone to anyone’s house at all. Lalithabai further stated that she told her son-in-law Ramesh about the incident and asked him to go to Chacharia to inform her husband about the incident and to bring him back. Mangilal also said his son-in-law came and informed him about the incident. Sumanbai stated that her brother-in-law was sent to bring back her father; that her brother-in-law’s name is Ramesh but the SHO wrongly wrote his name as Dinesh in the FIR. Significantly, Dinesh or Ramesh, brother-in- law of Sumanbai was not examined to corroborate that there was a search for Sumanbai on the night of 28.1.1991 or that he was appraised about the incident by his mother-in-law on 29.1.1991 and that he went and informed his father-in-law about the incident.

10. Thus the two persons (other than the parents) who were allegedly informed about the incident namely Ramesh (on 29.1.1991) and Ramlal (on 30.1.1991) were not examined and consequently there is no corroboration.

11. Dr. Vandana (PW-8) stated that on examination of Sumanbai, she found that her menstrual cycle had not started and pubic hair had not developed, and that her hymen was ruptured but the rupture was old. She stated that there were no injuries on her private parts and she could not give any opinion as to whether any rape had been committed. These were also recorded in the examination Report (Ex. P8). She, however, referred to an abrasion on the left elbow and a small abrasion on the arm and a contusion on the right leg, of Sumanbai. She further stated that she prepared two vaginal swabs for examination and handed it over along with the petticoat of Sumanbai to the police constable, for being sent for examination. But no evidence is placed about the results of the examination of the vaginal swabs and petticoat. Thus, the medical evidence does not corroborate the case of sexual intercourse or rape.

12. We are thus left with the sole testimony of the prosecutrix and the medical evidence that Sumanbai had an abrasion on the left elbow, an abrasion on her arm and a contusion on her leg. But these marks of injuries, by themselves, are not sufficient to establish rape, wrongful confinement or hurt, if the evidence of the prosecutrix is found to be not trustworthy and there is no corroboration.

13. Lalithabai says that when Sumanbai did not return, she enquired with Gyarsibai. Sumanbai also says that she used to often visit the house of Gyarsibai. She says that Radhu’s parents are kaka and baba of her mother and Radhu was her maternal uncle. The families were closely related and their relationship was cordial. In the circumstances, the case of the prosecution that Gyarsibai would have invited Sumanbai to her house to abet her son Radhu to rape Sumanbai and that Gyarsibai was present in the small house during the entire night when the rape was committed, appears to be highly improbable in the light of the evidence and circumstances.

14. The FIR states that one Dinesh was sent by Lalithabai to fetch her husband. Lalitabai and Mangilal have stated that they did not know anyone by the name Dinesh. Sumanbai stated in her evidence that on 29.1.1991, asher father was away, her brother-in-law went to bring back her father, that the name of her brother-in-law is Ramesh, but the SHO wrongly wrote his name as ’Dinesh’. But none else mentioned about such a mistake. Neither Ramesh nor Dinesh was examined.

15. The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu’s father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai’s father Mangilal was indebted to Radhu’s father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the Trial Court and High Court erred in returning a finding of guilt.

16. We, therefore, allow the appeal, set aside the judgments of the courts below and acquit the accused of all charges.

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