Delhi High Court

Kuldeep Tyagi vs The State Nct Of Delhi on 18 March, 2013

Author: S. P. Garg

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : February 13, 2013
                                DECIDED ON : March 18 , 2013

+      CRL.A.957/2010 & Crl.M.B.No.1971/2012

       KULDEEP TYAGI
                                                       ..... Appellant
                          Through : Mr.K.Singhal with Mr.Siddharth
                                    Mittal, Advocates.

                          Versus

       THE STATE NCT OF DELHI                     ..... Respondent
                     Through : Mr.M.N.Dudeja, APP for the State.
                               SI Rakesh Kumar, PS I.P.Estate.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Kuldeep Tyagi impugns judgment dated

03.04.2010 in Sessions Case No.64/2008 arising out of FIR No.91/2008

registered at Police Station I.P.Estate by which he was convicted for

committing offence punishable under Section 376 IPC and sentenced to

undergo RI for seven years with fine `10,000/-.

2. Allegations against the appellant were that on 12.04.2008 at

02:45 P.M., he and Raj Kumar (since acquitted) kidnapped 'X' (assumed

name) aged 17 years from ITO with intent to secretly confine her. It was

further alleged that 'X' was wrongfully confined and demand of `15 lacs

was made from her father Narvender Singh for her release. The appellant

repeatedly committed rape upon her at Mussoorie and Shimla on the false

promise to perform marriage with her after she turned 18. The

prosecution examined 14 witnesses. In 313 Cr.P.C. statement, the

appellant pleaded false implication. He stated that physical relations with

'X' were consensual and when her parents came to know about it, they

falsely implicated him. He was apprehended from his office at Khuleshra,

Noida on 16.04.2008. DW-1 (Naveen Srivastava) and DW-

2(Raman Bhardwaj) appeared in defence. On appreciating the evidence

and considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, convicted the appellant under Section 376 IPC and

acquitted co-accused Raj Kumar Sharma. Being aggrieved, the appellant

has preferred the appeal.

3. At the outset, it may be mentioned that appellant and his

associate Raj Kumar Sharma were also charged for offences under Section

365/364A/34 IPC. However, the prosecution failed to establish the

charges and both the appellant and Raj Kumar Sharma were acquitted of

the charges under Section 365/364A/34 IPC. It is significant to note that

State did not challenge the said acquittal. It is further significant to note

that 12.09.1990 was ascertained the date of birth of the prosecutrix 'X'.

Date of occurrence was 12.04.2008. The prosecutrix was admittedly 17

years and 7 months of age at the time of incident. The Trial Court

observed that 'X' was a consenting party and had established physical

relations with the appellant without any fear or pressure. It, however, was

of the view that her consent was obtained on the promise to marry and it

was no consent in the eye of law.

4. After analysis of evidence, it transpires that no credible

evidence was adduced to prove that 'X' was forcibly taken to Shimla/

Mussoorie/Nanital against her wishes after administering poisonous

substance in juice as alleged earlier. The Trial Court did not believe that

the prosecutrix was not in her senses when she went with the appellant

and others to Shimla. She had conversation with her sister on her mobile

No.9818982905 for 59 seconds at 16:29:53. In her statement before the

Court 'X' gave clean chit to Raj Kumar Sharma and admitted that she had

no grievance against him as he had not done anything.

5. Statement of the prosecutrix is wavering. In her 164 Cr.P.C.

statement (Ex.PW6/A) made on 19.04.2008, she revealed that she was

having friendship with Kuldeep Tyagi and had physical relations with him

for some time. She, however, disclosed that the relationship was not with

her consent. She was forced in physical relationship by her friend Neha

Manchanda. The physical relationship was established as Neha after

introducing her to Kuldeep and her friend Ashok blackmailed her and

threatened to involve her elder sister and to cause physical and mental

harm to her. She further disclosed that she was offered a glass of juice on

the day of incident and after taking juice, she felt drowsiness. Thereafter,

she was taken to Shimla as the appellant threatened her that on her refusal,

he would tell about previous relations and will harm her sister and family.

When she regained consciousness, she found that they had come to

Mussoorie. Kuldeep made physical relationship with her. He had told her

on previous occasion that he was unmarried and would marry her when

she completed 18 years. Due to the inducement, she entered into physical

relations that night. Next date Kuldeep called her father and demanded

`15 lacs for her release and it was disclosed to her by the police.

6. In her statement before the court, she deposed that when she

was pursuing her 12th class from Open School, she met Kuldeep Tyagi

through her friend Neha Manchanda about one and a half year back. She

used to have conversation with him as a friend. On the day of incident,

Kuldeep first called her to reach at Rajeev Chowk by 12.00 or 12.30 P.M.,

then asked her to reach and meet him at ITO. When she met him, he told

that he had a plan with Raju @ Raj Kumar Sharma to go to Shimla and

requested her to accompany them. When she refused to go without her

parents' permission, he asked her to accompany him to Noida as Raj

Kumar's friends were waiting for them there and they were to accompany

them to Shimla. She went to Noida where Raj Kumar was waiting with

two girls. Raj Kumar brought two glasses of juice on Kuldeep's

directions. After taking juice, she started feeling drowsy. She requested

Kuldeep to drop her at ITO as she wanted to return home. However, she

was taken to Shimla. She was not in her full senses and was not aware as

to what was happening. She further deposed that at Shimla and other

places Kuldeep Tyagi established physical relations with her on the

promise to marry her. On earlier occasion, he had told her that he was

unmarried and would marry her soon after she completed 18 years.

7. In the cross-examination, she admitted that when she met

Kuldeep for the first time about one year back at Laxmi Nagar, she was

working in ICICI bank at Shakar Pur. They were frequently meeting and

whenever they met, they had physical relations. She further disclosed that

for about six months, they were meeting as friends without having

physical relations. She further admitted physical relations were made

with her consent. However, she explained that she was having no other

option because Kuldeep Tyagi told her that it would make no difference

whether it (physical relation) was before or after marriage. She did not

complain to any official of the hotel about what happened with her. She

denied that Kuldeep never promised to marry and she was aware about his

marital status.

8. From the testimony of the prosecutrix it reveals that after

developing friendship with Kuldeep Tyagi for about six months, they had

physical relations thereafter for about six months. She admitted that

whenever they met, they had physical relationship. She did not claim that

before entering into physical relationship at the first instance or thereafter,

the appellant had given her any promise to marry or that he obtained her

consent for sex on the false promise of marriage. She did not depose if she

lodged any complaint against the appellant for obtaining her consent

under misconception of fact. She continued to have physical relationship

frequently without insisting the appellant to fulfill his promise to marry

her. She did not bring this relationship to the notice of her parents and her

elder sister (PW-3). She did not visit the house of the accused and met his

parents. She never took the accused to her residence to introduce him

with her parents. On the day of occurrence, she voluntarily went to

different places i.e. Shimla, Nanital and Mussoorie and remained in the

appellant's company for number of days. She had two mobile phones.

At no stage, she informed her sister or parents about her whereabouts.

She did not raise hue and cry at any place. She travelled with the accused

and had physical relations with him with her consent. Prior to her

recovery by Delhi Police after registration of the case under Section

365/364A IPC in Delhi, she had no grievance against the conduct and

attitude of the appellant. It is not her case that she ever insisted him to

marry her or that the offer was declined by him. Till recovery, the

prosecutrix was not even aware that the appellant was a married man and

had a family. She was a grown up girl aged more than 17 years. She had

disclosed her age 18 years while getting job at ICICI Bank. She was

aware of the consequences of her act of having sexual intercourse

voluntarily with the appellant. It is unclear as to when and where the

appellant obtained her consent under misconception of fact. When 'X'

was apprehended in the company of the accused, consequent to

registration of the FIR at Delhi, she for the first time alleged that her

consent was due to false promise of marriage. There was no occasion for

her to travel to remote places without her parents' consent and permission

and to indulge in sexual relation with the accused. It was not a single

occasion when she submitted for sexual relationship on the alleged

promise of marriage. The relationship continued for many months. It is

not 'X's plea that on every occasion, she had sex on the false promise of

marriage. It is not expected that 'X' who was on the verge of attaining

majority would continue to submit for sex to the accused and would not

come to know about his marital status and family. Initially, the prosecutrix

intended to implicate him for forcible abduction after administering

poisonous intoxicant in the juice. Her father even alleged that `15 lacs

were demanded as ransom by the accused for her release. Subsequently,

'X' changed her version and introduced a new story that sexual

relationship was with consent but was because of the promise to marry.

9. PW-7 (Bineeta) and PW-8 (Jonali) had also accompanied

them to Shimla and other places. They were Raj Kumar Sharma's friend

and stayed with him in different rooms. They did not allege that anything

untoward happened with them. They did not depose that 'X' was ever

molested or served with an intoxicant. 'X' never lodged any complaint to

the girl accompanying them. Their statements were recorded by the police

soon after recovering 'X'. However, 'X' refused to give her statement

saying that she would give her statement in the presence of her father.

10. In Uday vs.State of Karnataka AIR 2003 SC 1639 the

Supreme Court held:-

"In 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 must 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."

11. In Pradeep Kumar @ Pradeep KumarVerma vs.State of

Bihar & Anr. (2007) 7SCC 413, Supreme Court quoted with approval

para (7) of the report of Division Bench of the Calcutta High Court in

Jayanti Rani Panda vs. State of W.B., 1984 Crl.L.J.1535 which is

extracted hereunder:-

"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."

12. In the recent case K.P.Thimmappa Gowda vs.State of

Karnataka, AIR 2011 SC 2564 the Supreme Court held as under:-

"In the present case, the facts are that Rathnamma herself stated in her evidence that she had sex with the Appellant on several occasions. It is also an admitted fact that the FIR against the Appellant was lodged just a few days before the birth of Rathnamma's child, which means there is delay of over months in lodging the FIR. The finding of the trial court, which has not been disturbed by the High Court, is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with the Appellant with her consent and hence there was no offence under Section 376 IPC

because sex with a woman above 16 years of age with her consent is not rape."

13. In the instant case the prosecutrix was on the verge of

attaining majority. She was working in ICICI bank. She had sufficient

intelligence to understand the significance and moral quality of the act she

was consenting to. She had friendship with the accused and had no

grievance against his conduct and behavior at any time. She had

established physical relationship number of times. She accompanied the

accused with his friends to different places at Shimla, Nanital and

Mussoorie. She never informed her parents and kept it a secret. She had

physical relations with the accused at different places with her consent

without any resistance. During that period, she never lodged any

complaint against the accused for cheating her. She never insisted the

accused to marry her. She never informed her parents about her