Every act sexual intercourse between two adults on the assurance of promise of marriage does not become rape. Pre-marital sex not only is immoral but also against the tenets of every religion.
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 109/13.
Unique Case ID No. 02405R0287532011.
State Vs. Ashish Kumar,
S/o Sh. Balwinder Pal,
R/o A-52, Kiran Garden,
Uttam Nagar,
New Delhi.
Date of Institution : 29.8.2011.
FIR No.135 dated 21.5.2011.
U/s. 376/506 IPC.
P.S. Bindapur.
Date of reserving judgment/Order : 05.12.2013.
Date of pronouncement : 20.12.2013.
JUDGMENT
1. The prosecution has chargesheeted the above named
accused for the offences punishable u/s.376/506 IPC.
2. As per the case of the prosecution, the prosecutrix
namely 'P' (real name withheld in order to conceal her identity)
has submitted a written complaint in P.S. Bindapur on 07.5.2011,
the gist of which is as under :
“I am in relationship with a boy named Ashish
Kumar since July, 2006. His parents were aware about
our relationship and he had promised to get married to
SC No.109/13. Page 1 of 33me. He committed sexual intercourse with me several
times and I had become pregnant somewhere in the
month of July, 2008. I informed him about the same
and asked him to solemnize marriage with me but he
sought some time to convince his family and to marry
his two elder sisters first. He insisted me to abort and
when I refused, he blackmailed me saying that he
would not marry me if I did not abort. Therefore, I got
my pregnancy aborted. All the times, he kept on
promising me that he would marry me after the
marriage of his sisters. When both of his sisters had
got married, I asked him to solemnize marriage with
me but he again requested for some more time. When
I came to know that he is getting married with
someone else, I rushed to his house in Delhi on
09.4.2011. I stayed in his house for 21 days and he
had sexual relations with me at his house several
times during that period. He had taken lakhs of rupees
from me for our marriage. On 29.4.2011, he and his
parents took me to Pathankot (Punjab) to solemnize
my marriage with him but there all the family
members abused, harassed and insulted me. They told
me that since my parents are not alive, there is
nobody to support me and to fight for me. Thereafter,
he took me to Amritsar saying that he will get married
to me there but he left me in front of a gurudwara and
disappeared. I tried to contact him on his mobile
phone as well as on the mobile phone of his father but
both the mobile phones were switched off. From
SC No.109/13. Page 2 of 33Amritsar, I returned to Delhi alone by train on
01.5.2011. When I reached his home, nobody was
there. I have been cheated, harassed and insulted and
hence I request you to take necessary action against
them.”
3. On the basis of aforesaid written complaint of the
prosecutrix, FIR was registered u/s.376/506 IPC and investigation
was handed over to SI Domnica. She recorded statement of the
prosecutrix u/s.161 Cr.PC and got her medically examined in DDU
Hospital on 21.5.2011 vide MLC No.9981/11. Exhibits handed over
by the doctor were seized by her. Prosecutrix was not having in
her possession any document regarding the abortion. On
23.5.2011 she was produced before the Ld. Magistrate, who
recorded her statement u/s.164 Cr.PC. IO collected the school
certificate of the prosecutrix regarding her age which reveals her
date of birth to be 28.3.1989. Accused came to be arrested on
09.6.2011. He was got medically examined in DDU Hospital and
the exhibits handed over by the doctor were seized. All the
exhibits were sent to FSL for forensic examination. After the
completion of the investigation, Charge Sheet was prepared and
submitted to the concerned Ld. Magistrate.
4. Upon committal of the case to the court of Sessions,
Charge u/s.376/506 IPC was framed against the accused on
22.12.2012. Accused abjured his guilt and accordingly prosecution
was called upon to lead its evidence.
5. The prosecution has examined 10 witnesses to
SC No.109/13. Page 3 of 33establish the guilt of the accused. Ld. APP also tendered in
evidence the FSL results Ex.PA & Ex.PB. The accused was
examined u/s.313 Cr.PC on 02.7.2013 wherein he admitted that he
had started friendship with the prosecutrix through Yahoo chat on
internet and used to meet her occasionally but denied that he had
committed sexual intercourse with her at any point of time. He
claimed false implication in this case.
6. The accused has examined himself as DW1 in his
defence. During the course of his testimony, he produced the
printout of various E-mails and chats which had taken place
between him and the prosecutrix and which have been marked as
Mark-A to Mark-S. The accused also examined his wife as DW2.
DW3 is the Senior Executive of Yahoo India Pvt. Ltd., who deposed
that E-mail Id “ashishkumar84@yahoo.com” was generated by Mr.
Ashish Kumar on 15.9.2004 and he had provided his alternate Email address as “mrashishkumar84@gmail.com”. However, the
witness deposed that his office is unable to provide any date
regarding E-mail Id “diya_spirit@yahoo.com” as the same is
registered in US Domain and not in Indian Domain. He proved his
affidavit in this regard as Ex.DW3/B. DW4 is the Manager
(Administration and HR), M./s. Keppel Land International Limited,
Bangluru, who deposed that E-mail Id “parvati@elitahomes.com”
was allotted by their company to Ms. Parvati during the course of
her employment with the company and further stated that he has
not brought the records pertaining to said E-mail Id as those have
already been erased by the company. DW5 is Associate Manager
Facilities, Infosys Limited, who deposed that the records pertaining
to official E-mail account allotted to accused Ashish has already
SC No.109/13. Page 4 of 33been deleted from the records and are not available with the
company. He proved his detailed affidavit in this regard as
Ex.DW5/A.
7. I have heard Ld. APP, Ld. Counsel for the accused and
have perused the entire record.
8. Ld. APP vehemently argued that accused has deceived
the prosecutrix by making her to submit herself to intercourse with
him on the promise that he would marry her which promise he
never intended to fulfill. She submitted that it is evident from the
testimony of the prosecutrix that she gave consent for sexual
intercourse with the accused only on the promise and assurance of
the accused that he would marry her at any cost. According to
her, the accused obtained consent of the prosecutrix to the sexual
intercourse by deceit and fraud and hence he has committed the
offence of rape. She further submitted that the printouts of E-mails
and chats Mark-A to Mark-S produced by the accused during his
testimony cannot be looked into as those are not accompanied by
certificate u/s.65B of Indian Evidence Act and for the reason that
those have not been put to the prosecutrix in her cross
examination so as to elicit her comments regarding those.
However, she further submitted that even if these E-mails and
chats are read in evidence, these support the case of the
prosecution that the accused had been assuring and promising the
prosecutrix at every moment that he would marry her. According
to her, the accused is liable to be held guilty for the offence of
rape.
SC No.109/13. Page 5 of 339. On the other hand, Ld. Counsel for the accused
vehemently argued that there is no iota of evidence on record to
suggest that the accused at any point of time promised the
prosecutrix that he would marry her. He submitted that the
prosecutrix has mentioned neither in her written complaint to the
police nor in her statement u/s.164 Cr.PC that in her examination
in chief that she consented to intercourse with the accused only on
getting of assurance from the accused that he would marry her.
He further submitted that the prosecutrix has not mentioned in her
examination in chief the date when the sexual intercourse took
place between the two for the first time and when the accused
made promise to her for the first time that he would marry her. He
submits that even if it be assumed that accused had promised the
prosecutrix that he would marry her, still there is no evidence on
record that he had done so before engaging him in sexual
intercourse with her. He further submitted that the E-mails and
chats between the accused and the prosecutrix Mark-A to Mark-S
are admissible in evidence as they are supported by the affidavit
of the accused, who had taken these printouts from the computer
and therefore the affidavit of the accused can be read as a
certificate u/s.65B of the Evidence Act. He further submitted that
the accused was not obligedto confront the prosecutrix by these
E-mails and chats during her cross examination. According to him,
the accused is liable to be acquitted.
10. The testimony of the prosecutrix is the most vital and
important piece of evidence for the prosecution in the instant
case. She has been examined as PW8. She has disclosed her age
as 27 years. She deposed that she had started chatting with the
SC No.109/13. Page 6 of 33accused on internet in April/May, 2006 and ultimately both
became friends. They met each other for the first time in Banglore
on 14.7.2006 and enquired about each other job, family status etc.
At that time, accused was working with M/s. Infosys and was
posted at Mysore. Thereafter the accused used to visit Banglore
and met her at her house on weekends and holidays. After
sometime, the accused expressed his interest in solemnizing the
marriage with her. He promised her that he would marry her after
the marriage of his two elder sisters, one of whom was divorcee.
He expressed his inability to get engaged to her but convinced her
that he would definitely marry her. He introduced her to his
parents and sisters and made her to talk to them on phone from
Banglore. She further deposed that in the mid of November, 2006
she alongwith accused went to her native place in Hyderabad to
meet her parents. Accused convinced her that he would persuade
his parents and her sister also that he is going to marry her. After
returning from Hyderabad, accused started showing physical
interest in her and asked her to engage into sexual intercourse
with him but she showed her disinclination for the same. She told
her that they should wait uptill marriage but the accused provoked
her mentally to such an extent that she had to give in. He told her
that he is going to be her husband and there is nothing wrong to
have sexual intercourse with him. After intense mental and
physical provocation, she engaged into sexual intercourse with
him many a times, as a result of which she had become pregnant
in the month of July, 2008 and later on had to abort the same at
the instance of the accused. She further deposed that in February,
2009 accused got transferred to Pune office of Infosys. She went
to meet him in Pune in August, 2009, stayed with him for three
SC No.109/13. Page 7 of 33days and thereafter accused committed intercourse with her. She
again went to Pune in November, 2009 and stayed with the
accused for two days. Every time when she met the accused, he
convinced and assured her that he would marry her. Whenever
she asked him about the marriage, he used to tell her that his
sister's marriage is fixed for May, 2010 and they should wait till
that time. She had also helped the accused financially by
transferring a huge amount to his bank account. She further
deposed that in June, 2010 the accused moved to Delhi and told
her that since both of his sisters have been married, it is turn for
their marriage. She came to Delhi on 07.8.2010 and stayed in the
house of the accused for two days. He introduced her to his
parents and also had intercourse with her. Accused promised and
assured her in front of her parents that he is going to marry her. In
November,2010 she again visited the house of accused in Delhi to
fix the date of marriage but this time his parents told her that
accused is Manglik and they should wait for his marriage till he
completes 27 years of age. She decided to wait for few more
months till the accused completed 27 years of age. On return from
Delhi, she came to know from other sources that the parents of
the accused are searching for some other girl for the accused. She
confronted the accused with the same but he denied all this saying
that he cannot get married to any other girl till he completes 27
years of age. She again came to the house of the accused in Delhi
on 09.4.2011 and stayed there for 21 days but during this period
she was shocked to see the behaviour of the accused's parents
who told her to go back and wait further. She was thrown out of
the house by the parents of the accused in the night of 09.4.2011
itself and accused also slapped her but later on she was allowed to
SC No.109/13. Page 8 of 33come inside the house and stay there. During this period of 21
days also accused kept on assuring that he is going to marry her.
During that period also, they had sexual intercourse with each
other. On 16.4.2011 accused took her to Dwarka Court and
introduced her to a lawyer namely Deepak Singh Sindhu saying
that he is planning a court marriage with her. They filled up
marriage application form and accused paid a sum of Rs.10,000/-to the lawyer as fee. After some days, accused told her that they
should not go for a court marriage as he is the only son of his
parents and his parents want a proper marriage to solemnize at
their native place in Pathankot, Punjab. She further deposed that
on 29.4.2011, she alongwith accused, his parents and his cousin
Happy went to Pathankot, Punjab, in train and reached there in the
morning of 30.4.2011. The uncle of the accused and his aunt came
to receive them at railway station and took them to Hotel Staywell
near the railway station. Soon after they checked into the hotel,
accused as well as his parents started showing true colours. They
abused her, beat her and used foul and filthy language with her.
Accused also gagged her mouth when she tried to shout. Accused
told her that he was only enacting a drama and whatever
happened between them should be forgotten. In the afternoon of
30.4.2011 accused and his cousin Happy took her to Golden
Temple, Amritsar, saying that accused would marry her there.
They reached Amritsar at 6 p.m. and in front of the Golden Temple
also, accused assured her that he would marry her. He told her to
close her eyes and pray to the God. She closed her eyes and
started praying. As soon as, she opened her eyes, she found that
the accused and his cousin had left and she was alone. She dialled
mobile number of the accused and his parents but all were
SC No.109/13. Page 9 of 33switched off. She called the brother-in-law of the accused who
stays at Banglore but he also feigned ignorance about the
accused. She stayed at Amritsar for the night and next day came
to Delhi. She directly went to the house of the accused but it was
locked and the neighbours did not know anything about the
accused and his family members. She stayed at Delhi for some
days and tried to contact the accused but did not succeed.
Ultimately, she visited P.S. Bindapur and submitted a written
complaint, on the basis of which FIR was registered. She was
produced before a Magistrate, who recorded her statement u/s.
164 Cr.PC Ex.PW4/A. According to her, accused was arrested from
his house in her presence on 09.6.2011 vide arrest memo
Ex.PW2/A.
11. In her cross examination, prosecutrix (PW8) deposed
that she had been doing job with M/s. Keppel Land international
Limited, Banglore, since the year 2005 and her job was of
secretarial and administrative nature. She joined UB Group in
August, 2011. She has been residing independently as a tenant in
Banglore since the year 2003 and was paying a sum of Rs.5,000/-as rent per month for one room set. She further deposed that they
(accused and the prosecutrix) had intercourse for the first time in
the month of November, 2006 at the house of the accused at
Banglore. She deposed that the accused had showed interest in
getting marriage to her at the time of their first meeting itself i.e.
14.7.2006. Thereafter he slowly used to put it in her mind that he
would marry her. In the month of August, 2006, he promised that
he would marry her but did not give any specific time frame for
marriage. She met the parents of the accused for the first time in
SC No.109/13. Page 10 of 33September, 2008 at the time marriage of his elder sister at
Banglore. She deposed that the purpose of visit of accused to her
native house at Hyderabad in November, 2006 was to assure her
family members about their marriage and nothing else. She
explained that by his statement in the examination in chief that
the accused mentally provoked her to have sexual intercourse
with him, she meant that he convinced her as well as her family
members that he would marry her in any event and there is
nothing wrong in having sexual intercourse between them before
the marriage. She consented to the sexual intercourse with him
only because of his promise of marriage even though he did not
give any definite time frame for marriage and told her that
marriage would be possible only after the marriage of his two
sisters. The accused used to tell her that if she is not going to
satisfy her husband i.e. him, where will he go. A specific question
was put to her by the Ld. Cross examining Counsel that if she had
any kind of fear that if she did not engage in sexual intercourse
with the accused, he would not marry her or that she had any kind
of temptation that he will marry her only if she had intercourse
with him. She replied that the only reason for which she consented
to have sexual intercourse is that she had become convinced that
he would marry her. She further deposed that after she had come
to know about her pregnancy, she informed the accused, who
advised her to abort the same. Accordingly, she visited the clinic
of Dr. Sumangla near her residence at Banglore and consumed the
tablets which were prescribed by the doctor. The tablets were
purchased by the accused but she did not remember exactly how
many tablets did she consume. She deposed that she had gone to
Pune to meet the accused in August, 2009, November, 2009 and
SC No.109/13. Page 11 of 33April, 2010. The accused did not come to Banglore from Pune to
meet her. In Pune, she stayed with the accused at his residence.
12. From the aforesaid testimony of the prosecutrix, it is
evident that she was about 20 years old in the year 2006 when
she started friendship with the accused. She was well educated
and doing a job of secretarial and administrative nature with a
reputed company of Banglore. She was an independent lady and
had been residing on rent alone in Banglore since the year 2003.
She had strong inclination towards the accused and used to spend
time willingly with him. She used to visit his place of residence off
and on, even in Pune and Delhi and spent nights with him. The
physical relations between her and the accused had developed
with her consent as admittedly, she had neither offered any
resistence nor had complained to anybody about the acts of the
accused. She used to exchange E-mails with the accused and used
to chat with him and the accused had been giving her assurance
that he would marry her but never gave any specific time frame
for the same. She continuously used to have physical relations
with the accused till the year 2011.
13. To rebut the allegations levelled by the prosecutrix
against him, the accused has entered the witness box himself as
DW1. He disclosed his aged as 29 years and deposed that he
joined Infosys in May, 2006 as System Engineer and remained
there till June, 2010, when he joined Accenture Services Pvt. Ltd.
He was staying in Banglore from October, 2006 to February, 2009.
He deposed that initially he was chatting with the prosecutrix at
her E-mail ID Diya_spirit@yahoo.com. She has sent her
SC No.109/13. Page 12 of 33photographs through E-mails on 05.7.2006 and 10.7.2006 but he
did not reply his E-mails. After a few days, the prosecutrix made a
call on his mobile number saying that they should start friendship
as they share common views. As per her request, they met at
Banglore bus stand in the end of July, 2006 for the first time when
he was coming to Delhi. She told him that she is in a depressed
state of mind as a person named Umesh with whom she was in a
relationship had got married. Thereafter, she kept on calling him
regularly and also used to come to meet him at his office. He
deposed that he never promised to marry the prosecutrix. He also
did not convince her parents about their marriage at the time of
their visit to her native village. According to him, it was the
prosecutrix, who had been insisting upon him to marry her but he
had told her categorically that his focus is on his career and not on
marriage. He also deposed that the prosecutrix told him that her
friend Rupa had found a match for her but she turned down the
proposal as she wanted to marry him. At that time also, he
rejected the marriage proposal. He deposed that the prosecutrix
kept on calling him and during those calls, she was alluring him to
have physical relations with her. On 14.5.2009 she told him that
she is going to marry a boy named Vikram in Trichi in Tamilnadu.
Thereafter, Vikram assaulted her physically and she had sent the
photographs in this regard. She also demanded Rs.50,000/- from
him but he did not give money to her. Thereafter the prosecutrix
again started insisting upon him to marry her by saying that she
wants to marry him only. He further deposed that in January, 2009
when the prosecutrix had called him for a farewell lunch to her
residence in Banglore on the occasion of his transfer to Pune, she
administered some sedatives to him and thereafter started
SC No.109/13. Page 13 of 33tempting him for physical relations but he resisted her temptations
and no sexual intercourse took place. Thereafter, the prosecutrix
again started harassing him by transferring the amount of Rs.
1,20,000/- to his account without any intimation to him and
without disclosing her account number. However, with some
difficulty, he got to know about the account number of the
prosecutrix and deposited the amount back in her account. In
December, 2009 he informed her about his engagement in Punjab.
She again transferred a sum of Rs.1 Lac in his account and told
him that he could not return this amount to her and also closed
her bank account. He submitted an application to his bank i.e.
ICICI Bank asking them as to from which account this sum of Rs.1
Lac had been transferred to his account and vide communication
dated 23.9.2010 (Ex.DW1/C), he was informed that this amount
has been transferred from bank account no.01190023242. When
he made inquiries from the prosecutrix about her account number,
she started alleging that he made her to abort her pregnancy in
the years 2009 and 2010. Again after one week, she transferred
further sum of Rs.1 Lac to his account and then closed her
account. He returned this sum of money also to her. He further
deposed that the prosecutrix got to know from some common
friend that his marriage has been fixed for 10.5.2011 and she
came to their house in Delhi on 09.4.2011. She told the accused
that she had come in search of a job and is staying at Khanpur.
Her advocate Sh. Deepak Singh Sindhu telephoned him on
16.4.2010 saying that he had not returned money to her and in
that regard, he should meet him in the court. He showed all the
transactions to the said advocate and the matter was settled. She
requested them to take her to Punjab for attending the marriage
SC No.109/13. Page 14 of 33ceremony. Accordingly, his parents, his cousin Happy and the
prosecutrix reached Pathankot on 30.4.2011. The parents of
Happy received them at the railway station and they checked in
Hotel Staywell. His would be wife and her parents had also come
there. After taking meals they all went to Golden Temple. In the
bus, the prosecutrix was sitting alongwith his wife and she told her
that they (prosecutrix and the accused) are already married and
were residing in Banglore as husband and wife. His wife informed
her parents about the same and in the meanwhile, prosecutrix ran
away from there. His parents-in-law called off the marriage and
insulted them. After few days, he alongwith his parents went to
his in-laws house, showed all the E-mails to them and convinced
them that there was no relationship of husband and wife between
him and the prosecutrix. They got convinced and ultimately, their
marriage took place on 24.5.2011. He also deposed that the
prosecutrix has filed a false complaint against him with the
intention that he would not be able to marry at Delhi and would be
constrained to marry her. According to him, the prosecutrix had
also tried to hack his E-mail Id while he was in custody in this case
and after he was released on bail, the prosecutrix called his
parents and demanded Rs.20 Lacs from them or otherwise, she
would file a case against them at Banglore. She has filed a false
complaint against them at Banglore also. He filed on record the
printouts of E-mails and Chats exchanged between him and the
prosecutrix, which are Mark-A to Mark-S.
14. In the cross examination, he denied that he had
promised to marry the prosecutrix in any of the meetings with her.
He also denied that he had assured her parents that he would
SC No.109/13. Page 15 of 33marry her. He deposed that it was on the insistence of the
prosecutrix that he alongwith his two friends visited her house in
her native place. He denied that E-mails Mark-F and Mark-S are
fabricated and manipulated. He also denied that the prosecutrix
had become pregnant from his loin in July, 2008 and he asked her
to terminate the pregnancy or otherwise, he would not marry her.
He deposed that upon his transfer to Pune on 07.2.2009 he had
not apprised the prosecutrix about his Pune address. He admitted
that the prosecutrix had come to Pune in August, 2009 but denied
that she had visited his residence or stayed with him for three
days or that they had physical relations during those three days.
According to him, they met in a restaurant in Pune. He admitted
that the prosecutrix had again come to Pune in November, 2009
but denied that she had stayed with him at Pune. According to
him, they met at Sahaj Yoga temple and other public places. He
also denied that the prosecutrix visited his house in Delhi on
07.8.2010 and he introduced her to his parents but denied that
she stayed in their house for two days. According to him, she left
their house on the same day. He further admitted that the
prosecutrix had visited their house again in November, 2010 and
then on 09.4.2011 but denied that she stayed with them for 21
days. According to him, she stayed in their house for about 4 or 5
days and he did not extend any promise of marriage during those
days and there was no physical relations between them during
those days. He also deposed that his father Sh. Balwinder Pal has
filed complaint against the prosecutrix before a Ld. Magistrate in
Dwarka Court, New Delhi, regarding demand of Rs.20 Lacs made
by her after he was released on bail. He denied all other
suggestions put to him by the Ld. APP.
SC No.109/13. Page 16 of 3315. From the aforesaid testimony of the accused, it
appears that there had been no sexual relations between him and
the prosecutrix at any point of time. It is also evident that the
prosecutrix had been pestering him for sexual intercourse but he
had been keeping off from the same deliberately as he wanted to
focus on his career. He had never made any promise or assurance
to the prosecutrix that he would marry her and it is the prosecutrix
who had been time and again telling him that she wants to marry
him and for this reason, she had turned down a proposal of
marriage from her friend Rupa. It is also evident that the
prosecutrix had once told him that she is going to marry a boy
Vikram in Trichi in Tamilnadu but that boy assaulted her physically
and the relations became sour. The prosecutrix had been
transferring money to the bank account of the accused time and
again without any demand from him and without his information,
probably to harass him and to create some evidence against him.
She never stayed with the accused at his residence at Banglore or
at Pune. She stayed in his house at Delhi only once and that too
for just 4 or 5 days. She knew that the accused is going to marry a
girl in Punjab on 10.5.2011 and had accompanied his family to
Pathankot on 30.4.2011 to attend the marriage ceremony and
there she told the accused's would be wife that she is already
married to the accused and they have been residing at Banglore
as husband and wife.
16. Undoubtedly, in cases involving offence of rape, the
testimony of the prosecutrix, if found to be worthy of credence as
well as reliable and inspiring confidence requires no corroboration
SC No.109/13. Page 17 of 33and court may convict the accused on the basis of her sole
testimony. She is undoubtedly a competent witness u/s.118 of
Evidence Act and her evidence must receive the same weight as is
attached to that of an injured in case of physical violence.
However, if for some reason, the court is hesitant to place implicit
reliance on the testimony of the prosecutrix, it may look for some
other evidence on record, which may lend assurance to her
testimony, short of corroboration required in case of accomplice. If
the court finds it difficult to accept the version of the prosecutrix
at its face value, it may search for evidence, direct or
circumstantially which would lend assurance about her testimony.
It also needs mention that even in cases of rape the onus is always
on the prosecution to prove affirmatively all the ingredients of the
offence which it seeks to establish and such onus never shifts. It is
not the duty of the defence to explain why and how the victim and
other witnesses have falsely implicated the accused. The
prosecution case has to stand on its own legs and cannot take the
support from the weakness of the case of defence. However, the
great suspicion against the accused and however strong the moral
belief and conviction of the court, unless the offence of the
accused is established beyond reasonable doubt on the basis of
legally admissible evidence and the material on record, the
conviction cannot be ordered. There is initial presumption of
innocence of the accused and the prosecution has to bring home
the offence against the accused by reliable evidence. The accused
is entitled to benefit of every reasonable doubt.
17. In the instant case, the prosecution alleges that the
accused obtained consent of the prosecution for sexual
SC No.109/13. Page 18 of 33intercourse on the basis of false promise of marriage and therefore
the consent of the prosecution cannot be termed as free or fair,
the same being a tainted one and hence the accused has
committed offence of rape.
18. The Supreme Court considered this issue at length in
case of Uday vs. State of Karnataka, 2003 (1) JCC 506, AIR
2003 SC 1639and held as under :
“It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given
by the prosecutrix to sexual intercourse with a person
with whom she is deeply in love on a promise that he
would marry her on a later date, cannot be said to be
given under a misconception of fact. A false promise is
not a fact within the meaning of the Code. We are
inclined to agree with this view, but we must add that
there is no strait jacket formula for determining
whether consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis, the
tests laid down by the Courts provide at best guidance
to the judicial mind while considering a question of
consent, but the Court must, in each case, consider
the evidence before it and the surrounding
circumstances, before reaching a conclusion, because
each case has its own peculiar facts which may have a
bearing on the question whether the consent was
voluntary, or was given under a misconception of fact.
It may also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence of
consent being one of them.”
19. Similarly, in Pradeep Kumar @ Pradeep Kumar
Verma vs. State of Bihar & anr., (2007) 7 SCC 413, the
SC No.109/13. Page 19 of 33Supreme Court observed as under :
“The failure to keep the promise at a future uncertain
date due to reasons not very clear on the evidence
does not always amount to a misconception of fact at
the inception of the act itself. In order to come within
the meaning of misconception of fact, the fact must
have an immediate relevance. The matter would have
been different if the consent was obtained by creating
a belief that they were already married. In such a case
the consent could be said to result from a
misconception of fact. But here the fact alleged is a
promise to marry. We do not know when. If a full
grown girl consents to 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.”
20. In Deelip Singh @ Dilip Kumar vs. State of Bihar,
AIR 2005 SC 203, it has been observed :
“20. The factors set out in the first part of Section 90
are from the point of view of the victim. The second
part of Section 90 enacts the corresponding provision
from the point of view of the accused. It envisages
that the accused too has knowledge or has reason to
believe that the consent was given by the victim in
consequence of fear of injury or misconception of fact.
Thus, the second part lays emphasis on the knowledge
or reasonable belief of the person who obtains the
tainted consent. The requirements of both the parts
should be cumulatively satisfied. In other words, 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 person doing the act i.e. the alleged
SC No.109/13. Page 20 of 33offender, is conscious of the fact or should have
reason to think that but for the fear or misconception,
the consent would not have been given. This is the
scheme of Section 90 which is couched in negative
terminology.”
21. The Supreme Court again in Deepak Gulati vs. State
of Haryana, Criminal Appeal No.2322/10 decided on
20.5.2013, held as under :
“Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like
this, the court must very carefully examine whether
the accused had actually wanted to marry the victim,
or had mala fide motives, and had made a false
promise to this effect only to satisfy his lust, as the
latter falls within the ambit of cheating or deception.
There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the
court must examine whether there was made, at an
early stage a false promise of marriage by the
accused; and whether the consent involved was given
after wholly, understanding the nature and
consequences of sexual indulgence. There may be a
case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the
accused, and not solely on account of
misrepresentation made to her by the accused, or
where an accused on account of circumstances which
he could not have foreseen, or which were beyond his
control, was unable to marry her, despite having every
intention to do so. Such cases must be treated
differently. An accused can be convicted for rape only
if the court reaches a conclusion that the intention of
the accused was mala fide, and that he had
clandestine motives.”
SC No.109/13. Page 21 of 3322. In the case at hand, the prosecutrix in her complaint
dated 07.5.2011 to the police, on the basis of which FIR has been
registered, has nowhere stated when did the accused extend
promise of marriage to her for the first time and when they had
sexual intercourse with each other for the first time. It is not clear
from the said complaint whether physical relations between the
two started before the accused promised her to marry or after
that. In her statement u/s.164 Cr.PC Ex.PW4/A she has stated that
they developed physical relations for the first time in the year
2008. There is no mention of any promise of marriage in that
statement. She has simply mentioned that the accused gained her
trust and stated that they will get married after the marriage of his
two sisters.
23. In the examination in chief also, the prosecutrix has
not mentioned when did the accused extend promise of marriage
to her for the first time and when did they engage into physical
relations for the first time. It is when she was questioned in this
regard in the cross examination that she stated that the accused
showed interest in getting married to her at the time of their first
meeting itself on 14.7.2006 and then in the month of August, 2006
he promised that he would marry her but did not give any specific
time frame for the same. In the cross examination, she stated that
they had sexual intercourse for the first time in the month of
November, 2006. This is totally contrary to her statement u/s.164
Cr.PC Ex.PW4/A where she had mentioned that they had physical
relations for the first time in the year 2008. The first time when the
SC No.109/13. Page 22 of 33accused committed sexual intercourse with her has been
described by the prosecutrix in her examination in chief as under:
“After returning from Hyderabad, we continued to
meet each other and the accused started showing
physical interest in me. He started telling me to
engage into sexual intercourse with him but I showed
my disinclination for the same. I told him that we
should wait uptill our marriage. However, he provoked
me mentally to such an extent that I had to give in.
He told me that he is going to be my husband and
there is nothing wrong if I engaged into sexual
intercourse with him. Ultimately after intense mental
and physical provocation, I compellingly engaged into
sexual intercourse with him many a times.”
24. The aforesaid portion of the testimony of the
prosecutrix is patently an improvement over her previous
statements recorded during the course of investigation. In those
statements, she did not state that the accused obtained her
consent for sexual intercourse after intense mental and physical
provocation. Even if the aforersaid portion of her testimony is
taken on its face value, it does not show that the accused obtained
her consent to the sexual intercourse solely on the basis of
promise to marry. A promise to marry is totally different from the
mental and physical provocation, as mentioned by the prosecution
in her testimony. If a boy engages a girl, whom he loves, in
sexually explicit talks and during those talks touches her sensitive
body parts so that she becomes sexually active and consents to
SC No.109/13. Page 23 of 33sexual intercourse, it can be said that the boy provoked the girl
mentally and physically to have physical relations with him but it
cannot be said that he obtained her consent by any
misconception, fraud or any other promise. Mental and physical
provocation is altogether different from a promise to marry and
the two cannot be equated. There is no categorical statement of
the prosecutrix in her examination in chief that she gave consent
for sexual intercourse with the accused only on the basis of her
promise to marry or on account of any threat or pressure from the
side of the accused. It is evident that she did not offer any
resistance and did not try to leave that place. I consider it not
proper for a girl to engage in sexual intercourse with a boy who
simply tells her that he is going to be her husband and there is
nothing wrong in engaging her into sexual intercourse with him. It
was for the girl in such circumstances to weigh the pros and cons
of the intended act and to decide whether or not she should
submit her a body to the boy.
25. It is important to note her that the prosecutrix, in none
of her statements mentions the place where the accused held out
promise of his marriage to her for the first time or where they had
physical relations with each other for the first time.
26. The prosecutrix had herself mentioned in each of her
statement that the accused did not give her any specific time
frame of marriage. Therefore, the prosecutrix was having no
guarantee when the accused would marry her and in these
circumstances, she should have been more circumspect before
giving her consent for sexual intercourse.
SC No.109/13. Page 24 of 3327. The statement of the prosecutrix in her cross
examination that she consented to have sexual intercourse with
the accused only for the reason that she had become convinced
that she would marry her does not appeal to any reason in view of
what has been discussed herein above. I fail to understand how
the prosecutrix had got convinced in just two or three months
after her first meeting with the accused that he would definitely
marry her. I myself do not feel convinced and satisfied that the
prosecutrix was misled by any promise or utterance of the accused
and she gave her consent to the sexual intercourse with him
because of the same. It appears that the prosecutrix being a
mature, educated and employed lady, understood the nature and
consequence of sexual indulgence with the accused and agreed to
have sexual intercourse with him only on account of her love and
passion for him and not solely on account of any alleged
misrepresentation.
28. Coming to the printouts of E-mails exchanged between
the parties and their Chats on the internet, filed by the accused at
the time of his deposition as DW1. These have been marked as
Mark-A to Mark-S. These were not exhibited at that time as this
court was in doubt whether these have been sufficiently proved as
per the Indian Evidence Act. These include transcripts of internet
chats between the prosecutrix and the accused dated 27.11.2006,
07.12.2006, 14.5.2008, 09.6.2008 and 24.9.2010 from their
respective E-mails ID parureddi@gmail.com and
mrashishkumar84@gamil.com. These also include transcripts of Emails dated 16.1.2007, 15.6.2007, 30.11.2007, 09.1.2009,
SC No.109/13. Page 25 of 3317.2.2009, 11.2.2009 and 17.2.2009, sent by prosecutrix from her
aforesaid E-mail ID to the accused on his aforesaid E-mail ID.
These also include transcripts of E-mails dated 12.2.2009 sent by
the prosecutrix from her another E-mail ID
parvathi@elitahomes.com to the accused and E-mail dated
12.7.2010 sent by the prosecutrix from her another E-mail Id
sahajparvati@gmail.com to the accused. No question has been put
to DW1 in his cross examination regarding authenticity and
genuineness of the aforesaid E-mail as well as internet chats. It is
manifest that the prosecution does not dispute that the two Emails IDs referred to in these E-mails and internet chats do not
belong to and were not operated by the prosecutrix.
29. Normally, in order to prove an electric record, the
requirements of section 65B of the Evidence Act have to be
complied with but there is no bar in adducing secondary evidence
in their proof under the provisions of sections 63 and 65 of the
Evidence Act. It is a matter of common knowledge that E-mails and
internet chats are stored in very huge servers of internet service
provider and those servers cannot be produced in the court.
Therefore when a witness produces the printouts of the E-mails
and internet chats in the court certifying that these have been
obtained truthfully and correctly, the printout documents
admissible as secondary evidence in view of section 63 of the
Evidence Act, unless these are disputed by the other side. Section
63 reads as under :
“63. Secondary evidence. - Secondary evidence
means and includes -SC No.109/13. Page 26 of 33(1) certified copies given under the provisions
hereinafter contained;
(2) copies made from the original by mechanical
processes which in themselves insure the accuracy of
the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the
parties who did not execute them;
(5) oral accounts of the contents of a document
given by some person who has himself seen it.”
30. In this regard, I may profitably refer to following
passage from the judgment of the Supreme Court reported as
2005 (11) SCC 600, State vs. Navjot Sandhu:
“According to section 63, secondary evidence means
and includes, among other things, “Copies made from
the original by mechanical process which in
themselves ensures the accuracy of the copy, and
copies compared with such copies”. Section 65
enables secondary evidence of the contents of a
document to be adduced if the original is of such
nature as not to be easily movable. It is not in dispute
that the information contained in the call records is
stored on huge servers which cannot be easily moved
and produced in the court. That is what the High Court
has also observed at page 276. Hence printouts taken
from the computers/servers by mechanical process
and certified by a responsible officer of the service
providing company can be led in evidence through a
witness who can identify the signature of the
certifying officer or otherwise speak of the facts based
on his personal knowledge. Irrespective of the
compliance with the requirements of section 65B,
SC No.109/13. Page 27 of 33which is a provision dealing with the admissibility of
electronic records, there is no bar to adducing
secondary evidence under the other provisions of the
Evidence Act, namely, sections 63 and 65. It may be
that the certificate containing the details in sub
section (4) of section 65B is not filed in the instant
case, but that does not mean that the secondary
evidence cannot be given even if the law permits such
evidence to be given in the circumstances mentioned
in the relevant provisions, namely sections 63 and
65.”
31. In the instant case, the E-mails and internet chats
Mark-A to Mark-S produced by the accused during the course of his
testimony have not been disputed from the side of the
prosecution. DW1 in his testimony has certified their correctness
and accuracy. Therefore, I am of the opinion, those have been
proved as per law and I hereby mark them as Ex.J1 (colly).
32. The E-mails and internet chats between the
prosecutrix and the accused tell a totally different story. It is
manifest from these that in fact, it was the prosecutrix, who was
insisting upon the accused to have sexual intercourse with her and
the accused was not inclined to the same. It is also apparent from
these E-mails and chats that the prosecutrix was not sure whether
or not the accused would marry her and still she was pestering
him for physical relations. The contents of these E-mails and
internet chats totally contradict the version of the prosecutrix and
destroy the prosecution case in totality. In fact, these advance the
defence taken by the accused that he did not engage into sexual
intercourse with the prosecutrix at any point of time and had
never promised to marry her and he as well as the prosecutrix
were merely friends. These E-mails and internet chats corroborate
SC No.109/13. Page 28 of 33the testimony of DW1, which has been already noticed hereinabove.
33. There is not even a slightest indication in the aforesaid
E-mails and internet chats between the accused and the
prosecutrix that the accused had held out any promise of marriage
to her and she consented to sexual intercourse with the accused
only for that promise and in fact, sexual intercourse had taken
place between the two. It is another thing that the prosecutric had
the impression that the accused also loves and intends to marry
her. The conduct of the accused may have given rise to such
impression in the mind of the prosecutrix but that alone is not
sufficient to hold that the consent of the prosecutrix for
intercourse with the accused was not voluntary. There is nothing
in these E-mails or internet chats to demonstrate that the accused
had assured her on any point of time that he would marry her. If,
in fact, the prosecutrix had consented to sexual intercourse with
the accused only on later's promise of marriage, she would have
said so in these E-mails. She has not mentioned even a word in
these E-mails or in internet chats about any promise of marriage
held out to her by the accused.
34. Now even if it be assumed to be true that the accused
at some point of time had held out a promise of marriage to the
prosecutrix and the prosecutrix indulged in intercourse with the
accused on such promise, I wonder how the intercourse between
the two in such circumstances would amount to rape.
35. In my opinion, every act sexual intercourse between
SC No.109/13. Page 29 of 33two adults on the assurance of promise of marriage does not
become rape, if the assurance or promise is not fulfilled later on by
the boy. When a grown up, educated and office going woman
subjects herself to sexual intercourse with a friend or colleague on
the latter’s promise that he would marry her, she does so at her
own peril. She must be taken to understand the consequences of
her act and must know that there is no guarantee that the boy
would fulfill his promise. He may or may not do so. She must
understand that she is engaging in an act which not only is
immoral but also against the tenets of every religion. No religion in
the world allows pre-marital sex.
36. The Calcutta High Court in the case of Jayanti Rani
Panda Vs. State of West Bengal & Anr., 1984 Cri.L.J. 1535
observed that in order to come within the meaning of
misconception of fact, the fact must have an immediate relevance.
It was also observed that if a fully grown up 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 and it was held that Section 90 IPC can not
be invoked unless the court can be assured that from the inception
accused never intended to marry her.
37. However it can not be said that in no case, having
sexual intercourse with a girl on the basis of a promise to marry
would amount to commission of rape. Every such case has to
examined on its individual facts and attending circumstances. The
Supreme Court in Yella Grinivasa Roa Vs. State of A.P.,
SC No.109/13. Page 30 of 332006(3) JCC 1623held that if it is shown that since the very
inception of making the promise, the accused did not intend to
marry her and the prosecutrix extends her consent to have sexual
intercourse with him, only on the strength of such
misrepresentation made to her, and thereby forms a
misconception of fact that the accused was definitely going to
marry her, it would amount to commission of rape.
38. In Uday Vs. State of Karnataka (supra)before the
Supreme Court, a friendship had developed between the
prosecutrix and the appellant. When the appellant proposed to
marry her, the prosecutrix told him that since they belonged to
different castes, their marriage is not possible. In these
circumstances the Supreme Court was of the view that the
consent given by the prosecutrix to sexual intercourse with a
person with whom she was deeply in love on a promise of
marriage, can not be said to be given under a misconception of
fact. The court further held that for determining whether consent
given by the prosecutrix was voluntary or under a misconception
of fact, no straight jacket formula can be laid down but following
factors stand out:-1. Where a girl was of 19 years of age and had sufficient
intelligence to understand the significance and moral
quality of the act she was consenting to
2. She was conscious of the fact that her marriage was
difficult on account of caste considerations.
3. It was difficult to impute to the appellant knowledge the
prosecutrix had consented in consequence of a
SC No.109/13. Page 31 of 33misconception of fact arising from his promise and
4. There was no evidence to prove conclusively that the
appellant never intended to marry the prosecutrix.
39. In the instant case also, the prosecutrix was 20 years
old in the year 2006 when she started friendship with the accused
and hence a mature girl. She was well educated and doing a job of
secretarial and administrative nature with a reputed company of
Banglore. She was an independent lady and had been residing on
rent alone in Banglore since the year 2003. Hence, I consider that
she was intelligent enough to understand moral quality and
consequences of her act and there were no chances of their being
misled by any assurance given to her by the accused. There is no
evidence on record to show that she consented to sexual
intercourse with the accused only on the later's promise of
marriage and otherwise, she would not have given her consent for
the same. In fact, there is evidence on record in the form of Emails and internet chats between the two (Ex.J1) that prosecutrix
had been pestering and inducing the accused to have sexual
intercourse with her.
40. In view of the aforesaid discussion, I feel that the
prosecution has failed to prove that sexual intercourse had taken
place between the prosecutrix and the accused and the consent of
the prosecutrix to the same was obtained by the accused by any
misconception of fact. Thus the prosecution has failed to prove the
charges against the accused.
SC No.109/13. Page 32 of 3341. Therefore, the accused is liable to be acquitted and is
hereby acquitted.
Announced in open (VIRENDER BHAT)
Court on 20.12.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.109/13. Page 33 of 33
Source - http://164.100.52.44/judis_cat/chrseq_dc.aspx (Page -6)
