Delhi High Court
X vs State (Govt. Of Nct Of Delh) & Anr. on 15 December, 2020
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 15th December, 2020
+ CRL.A. 613/2020 & CRL.M.A. 16968/2020
X ..... Appellant
Through: Mr Saurabh Kansal, Advocate.
versus
STATE (GOVT. OF NCT OF DELH)
& ANR. ..... Respondents
Through: Mr Ravi Nayak, APP for State
with SI Preeti, PS Malviya
Nagar.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
VIBHU BAKHRU, J. (ORAL)
1. The appellant has filed the present appeal impugning a
judgment dated 24.03.2018, whereby the accused was acquitted of the
offences for which he was charged - offences punishable under
Section 417/376 of the Indian Penal Code, 1860 (IPC).
2. On 15.08.2015, the appellant had filed a complaint with PS
Malviya Nagar pursuant to which an FIR (FIR bearing no.1566/2016,
under Sections 417/376 of the IPC) was registered. The accused was
prosecuted pursuant to the said FIR.
3. The contents of the complaint have been set out in paragraph 1
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of the impugned judgment and the same is reproduced below:-
"1. Briefly stated case of the prosecution is that on
15.08.2015 prosecutrix went to police station Malviya
Nagar and gave her complaint wherein she stated to the
effect that she was resident of Panchsheel Park (complete
name and address of prosecutrix is mentioned in the
complaint, however, the same has not been reproduced
here in to protect the identity of the prosecutrix) and that
she was doing work of cooking food at Greater Kailash-
II. Rahul @ Golu was resident of Malviya Nagar. She had
physical relations with him since the year 2008. After 3-4
months he promised to marry her and made her elope
with him. His family members made him understand
after which Golu brought her to his house and kept her
with him like his bride at his home. He kept her as his
wife. During this period she became one month pregnant
but Golu told her that he did not want a child as yet. He
brought medicine and gave it to her due to which her
pregnancy was aborted. She stayed with Golu at his house
for one year after which he made her understand and sent
her back to her house. After that also they used meet
when no one was present at house of Golu. Thereafter
Golu had a quarrel with his neighbour. Due to this Golu
went to Punjab and stayed at his Chacha's house for a few
days and from there he eloped with a girl named Manu
and married with her at Arya Samaj Mandir. Golu started
staying at his house with Manu and did not call her
(prosecutrix) there. He, however, started visiting her and
staying with her at her rented accommodation at Khanpur.
He used to stay at his house for few days and stayed with
her at Khanpur for others. During this period she again
became pregnant and accused gave her medicine stating
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that he did not want a child. Thereafter they shifted from
Khanpur to Savitri Nagar and started staying there in· a
rented accommodation. After a few months she returned
back to her house to stay with her mother and father.
After staying there for 3-4 months she took a room at
Savitri Nagar and started residing there all by herself.
Golu again had quarrel with his neighbour and absconded
from Begumpur. He came to her and started staying with
her. They stayed together till 15.08.2015. She used to
work in Kothi's and managed her own expenses as well as
expenses of her house from her earnings. Golu worked
with a property dealer at Malviya Nagar. In the said
office Golu developed relationship with the girl named
Priya. She used to call Golu every day. Today (the day
prosecutrix filed her complaint) she visited her house
(house of prosecutrix) and took away Golu as well as his
articles with her and Golu also sent with her. Golu had
cheated her and established physical relations with her
repeatedly by making a false promise of marriage to her
and now he had left her for Priya. She and Golu used to
establish physical relations mostly at his house as he used
to take there, when no one was present, both before and
after marriage of Golu. She prayed for police help and
for strict action against Golu."
4. After registration of the FIR, the statement of the complainant
was recorded under Section 164 of the Cr.PC.
5. The prosecution's case rested almost entirely on the statements
and the testimony of the complainant. The relevant extract of her
examination-in-chief is set out below:-
"I know the accused for the past ten years. The
accused used to follow me on the bike when I used to go
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to school. We became friends and started speaking to each
other on our mobile phones. About 10 years back, I left
my house and started living in a house at Geetajali
Enclave wherever working as domestic help. The accused
and I started having a love affair about ten years back. We
used to go for outings. The accused and I went to Punjab
to his bua's house where we stayed for ten days. After
coming back to Delhi, I went to the house of the accused
and stayed in his house as husband and wife for one year
in 2008-2009. We did not undergo any marriage
ceremony. The accused had physical relations with me
telling me that I was his wife. The sister of the accused
did not like me because of which there were fights in the
house and so the accused asked me to stay somewhere
else for sometime till the situation improved. I started
staying in my parents house.
After about three months of my stay at my parents
house, I and Golu started living in rented premises at
Khanpur. During my stay at Khanpur with the accused, I
came to know that the accused was in relations with some
other girl namely Manu who lives in Punjab. When I
made enquiry from accused regarding the girl Manu he
told me that his friends had a bet that who will succeed in
having friendship with Manu and he had succeeded in
friendship with Manu. Accused did not tell me that he
was having any other relations with Manu. I remained
with the accused in a rented premise at Khanpur for about
1½ years. Accused used to stay sometimes with me and
sometimes with his family. I remained with the accused in
the rented premises at different places upto year 2013.
Accused had left me without informing and I returned to
my parents house.
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On the next day of karwa chauth in the year 2013,
accused had left for Punjab. I came to know from the
sister of Golu that accused had married Manu in Punjab. I
tried to contact the accused on his mobile phone, but he
did not pick up my mobile phone. After about 1 0-15
days, accused called me at Malviya Nagar market to meet
me and I went to Malviya Nagar market and accused met
me. When I made enquiry from accused regarding his
marriage with Manu, accused started making excuses by
saying that he will tell all the things later on. After formal
talks with me accused left. I remained in touch with the
accused through mobile phone and I also used to meet
him.
In the year 2014, I stayed with the accused in a
rented premise at Faridabad. The wife of the accused was
staying with his family. Accused used to stay sometimes
in the day time with me or sometimes at night time. He
also used to stay with his family. Accused used to
establish physical relations with me during our stay at
Faridabad. I had stayed with the accused for about four
months. Thereafter, the accused took a rented premises at
Savitri Nagar and I stayed with the accused in the said
premises. I stayed with accused in the said premises for
about 5-6 months. Our physical relations continued during
the said period.
Thereafter the accused started meeting another girl
namely Priya who was working in some kothi at Saket. I
came to know about two and half years before filing of
the present case that accused Golu was having relations
with Priya. I used to convey to the accused to leave Priya
and the accused informed me that he is not having any
relations with Priya. I had read the message of Priya on
the mobile phone of accused Galu and I called back her.
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Priya asked me how I had managed to get her mobile
number. I conveyed to Priya that we will sort out the
matter after meeting each other. I and Priya met in Sai
Saba Mandir at Saket. Accused also reached there later
on. Thereafter, accused and Priya had a fight and Priya
had slapped the accused. Thereafter Priya damaged the
mobile phone of Golu and both of them left. Thereafter, I
started calling Priya to have a talk with Golu as both of
them left from Sai Saba Mandir together. Priya did not
allow me to have talk with Golu. Thereafter, Priya sent
her photographs on my Whatsapp and informed me that
she had married Golu. I had accepted the marriage of
accused Golu with Manu and continued in relation with
him but I did not accept the marriage of the accused with
Priya. Thereafter, I decided to lodge a complaint against
accused Golu. Accused had left me alone in a rented
premise at Savitri Nagar and started avoiding me. I made
a written complaint to the police in my handwriting and
the same is Ex.PW1/A bearing my signatures at point A."
6. It is apparent from the above that there is no dispute that even
according to the appellant, the relationship between the appellant and
the accused was consensual.
7. The Trial Court evaluated the said evidence and concluded as
under:-
"59. From the complaint Ex.PW-1/A, statement
Ex.PW-1/C under Section 164 CrPC and the statement
of prosecutrix as PW-1, it is thus evident that the
prosecutrix established physical relations with the
accused of her own free will and accord as she had
genuine affection for the accused and that in the first
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instance her consent for physical relations had not been
obtained by the accused by making any promise of
marriage to her. The talks of marriage, if any, took place
between accused and prosecutrix subsequent to their
entering into intimate physical relationship.
60. Further from the material placed on record by the
prosecution the consent of the prosecutrix in continuing
with her relationship with the accused is clearly brought
out. From the complaint Ex.PW-1/A itself it is seen that
prosecutrix continued with her relationship with the
accused despite the fact that she knew that he had eloped
and married with a girl named Manu. As per prosecutrix
she had physical relations with the accused and became
pregnant even after his marriage with Manu. She
claimed that after sometime accused had developed
relationship with another girl namely Priya but in spite
of it prosecutrix continued with her relationship with
accused till 15.08/2015 when Priya came to her house
and took accused and his articles with him."
8. This Court finds no infirmity with the aforesaid conclusion. A
bare reading of the complaint made by the appellant as well as her
testimony clearly indicates that even according to her, her relationship
with the accused was consensual. Her allegation that her consent has
been vitiated on account of having been obtained by
misrepresentation, is clearly, unsustainable.
9. In Pramod Suryabhan Pawar v. State of Maharashtra and
Another: (2019) SCC online SC 1073, the Supreme Court had
observed as under:-
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"12. This Court has repeatedly held that consent with
respect to Section 375 of the IPC involves an active
understanding of the circumstances, actions and
consequences of the proposed act. An individual who
makes a reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the various
possible consequences flowing from such action or
inaction, consents to such action. ....
xxxx xxxx xxxx xxxx
16. Where the promise to marry is false and the
intention of the maker at the time of making the
promise itself was not to abide by it but to deceive the
woman to convince her to engage in sexual relations,
there is a "misconception of fact" that vitiates the
woman's "consent". On the other hand, a breach of a
promise cannot be said to be a false promise. To
establish a false promise, the maker of the promise
should have had no intention of upholding his word at
the time of giving it. The "consent" of a woman under
Section 375 is vitiated on the ground of a
"misconception of fact" where such misconception was
the basis for her choosing to engage in the said act..."
10. The Supreme Court also referred to various other decisions and
summarized the legal position as under:-
"18. To summarise the legal position that emerges from
the above cases, the "consent" of a woman with respect
to Section 375 must involve an active and reasoned
deliberation towards the proposed act. To establish
whether the "consent" was vitiated by a "misconception
of fact" arising out of a promise to marry, two
propositions must be established. The promise of
marriage must have been a false promise, given in bad
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faith and with no intention of being adhered to at the
time it was given. The false promise itself must be of
immediate relevance, or bear a direct nexus to the
woman's decision to engage in the sexual act."
11. As noted by the Trial Court, according to her complaint, the
appellant has stated that she had physical relationship with the accused
in the year 2008 and after three or four months, thereafter, he had
promised to marry her and she had eloped with him. In view of the
said statement, her allegation that her consent to engage in sexual
activity with the accused, is vitiated, as the same was secured on a
promise to get married, is not sustainable.
12. Inducement to have a physical relationship by promising
marriage and the victim falling prey to such inducement may be
understandable in the context of the moment. A promise of marriage
cannot be held out as an inducement for engaging in sex over a
protracted and indefinite period of time. In State vs Sandeep: CRL.
L.P. 532/2019, decided on 25th September 2019, this Court had held
that in certain cases, a promise to marry may induce a party to agree to
establish sexual relations, even though such a party does not desire to
consent to the same. Such inducement in a given moment may elicit
consent, even though the concerned party may want to say no. In such
cases, a false promise to marry with the intention to exploit the other
party may vitiate consent and thus, constituting an offence of rape
under Section 375 of the IPC. However, it is difficult to accept that
continuing with an intimate relationship, which also involves engaging
in sexual activity over a significant period of time, can be construed as
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involuntary and secured not by affection but only on the lure of
marriage.
13. The complainant has also alleged that she had conceived on two
occasions; however, the accused did not want any children and
therefore, had brought medicines, which had led her to abort the
pregnancy. However, in her cross-examination, she could not recollect
the date or the time when such miscarriages had taken place.
Concededly, there is no other evidence, which would establish that the
appellant had miscarried on being administered any drugs.
14. The present appeal is also filed after an inordinate delay of six
hundred and forty days. There is no credible explanation for such
delay. The only explanation provided is that the accused has once
again starting interfering with the complainant's life and therefore, she
seeks to revive her complaint. Clearly, the same presents no ground
for condoning such delay.
15. In view of the above, the appeal is unmerited and is,
accordingly, dismissed both on merits as well as on the ground of
delay.
VIBHU BAKHRU, J
DECEMBER 15, 2020
MK
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