Download - Jeevansathi Rape case
In the Court of Ms. Kaveri BawejaAdditional Sessions Judge Special FTC – 2 (Central)
Tis Hazari Courts: Delhi.
Sessions Case No. : 52/2014Unique ID No. : 02401R0659852013
State versus Harish Sharma S/o Sh. Yadram Sharma R/o 3C422, Budhi Vihar, Muradabad, UP.
Case arising out of:
FIR No. : 216/2012Police Station : DBG Road Under Section : 376 IPC
Judgment reserved on : 12.10.2015Judgment pronounced on : 31.10.2015
JUDGMENT
PROSECUTION CASE:
1. It is the case of Prosecution that on 25.05.2012, complainant
'P.D.' (name withheld in order to protect her identity) came to PS DBG Road
and gave statement to ASI Pushpa alleging commission of rape by accused
Harish Sharma. At the same time, she also gave in writing that as she had
also given a complaint against accused at Mahila Thana at Raipur, where the
matter is pending consideration, she does not want any action against the
accused for one month as. However, on 26.09.2012, she again came to the PS
DBG Road and got lodged a case FIR against the accused Harish Sharma on
the basis of her complaint dated 25.05.2012, the contents whereof are being
enumerated as under:
2. The complainant 'P.D.' is a resident of Raipur. About 1½ year
back, she created a profile on the website jeewansathi.com for matrimonial
purpose and found the details of one Harish Sharma, which she liked.
Thereafter, she sent a proposal for marriage to him and also disclosed her
entire personal details to him. Accused accepted her proposal for marriage
through his mobile phones viz., 9759684740 & 9990111593 and remained in
touch with her for 1½ year on the pretext of marriage and gained her
confidence.
3. The complainant further stated in her complaint that on
14.12.2011, accused called her to Delhi to meet his family members. She
reached Delhi by train on 14.12.2011 in the evening and accused came to
Hazrat Nizammudin Railway Station to pick her at about 6:30 PM and instead
of taking her to his house, he took her to a hotel namely Orchid Garden at
DBG Road, Karol Bagh, Delhi. Upon asking of complainant as to why he has
brought her to a hotel, accused told her that his family members will come
after two days to meet her and that he will introduce her to them in the same
hotel. The complainant being unknown to Delhi city, had no option, but to
stay in the said hotel.
4. The complainant further alleged in her complaint that accused
had established physical relations with her against her wishes in the aforesaid
hotel on the pretext of marriage. Due to fear of defamation in society, she did
not disclose anyone about this incident. Family members of Accused also did
not come to meet her. Accused asked her to return to her house at Raipur and
assured her that he will come there along with his family to talk about their
marriage. However, accused did not turn up for the same. Thereafter, the
complainant also found that the Accused had closed his profile on
jeewansathi.com and had also switched off his mobile numbers. Complainant
also made several efforts for calling the accused at Mahila Thana at Raipur,
but the accused did not turn up there. Thereafter, the complainant was
constrained to lodge a complaint against the accused at PS DBG Road.
5. During the course of investigation, Complainant was got
medically examined vide MLC No.15060 from LNJP Hospital and the
exhibits collected from the hospital were taken into police possession and
were deposited in the Malkhana thereafter. Search was also made for the
Accused Harish Sharma at his office at Moradabad as well as his house at
Amroha. Thereafter, Accused got Anticipatory Bail from the court on
26.10.2015. However, he was formally arrested on 28.10.2015 and was
joined in investigation and his medical was also got conducted an the exhibits
were also collected from the hospital.
6. Police also made from the staff of Hotel Orchid Garden, DBG
Road, Delhi. Statement of witnesses were also recorded during investigation,
exhibits were sent to FSL for opinion and after completion of investigation,
charge sheet was filed before the court.
CHARGES :
7. Upon committal of the case and on the basis of material on
record, Accused Harish Sharma S/o Sh.Yadram Sharma was charged for
offence punishable under Sections 376 IPC vide order dated 05.08.2014.
Accused pleaded not guilty and claimed trial when the charge was read over
and explained to him.
PROSECUTION WITNESSES:
8. Prosecution examined 15 witnesses in all in order to prove its case
which may be categorized as under :
(i) Public Witnesses :
9. Prosecutrix 'PD' was examined as PW1. Her testimony would
be discussed later in the course of the judgment in order to avoid repetition
and for the sake of brevity.
10. PW3 Sh.Pranav Mahajan, Manager (Legal), Info Edge (India)
Ltd. deposed that jeevansathi.com is a website which is owned and operated
by Info Edge (India) Ltd. He further deposed that on 27.09.2013, upon
receipt of notice under Section 91 Cr.PC from SI Sangeeta (Ex.PW3/A), he
submitted the requisite information vide his lettercumcertificate under
section 65B Evidence Act dated 30.09.2013 and proved the same as
Ex.PW3/B.
11. Sh.Sanjay Gupta, Manager of Hotel Orchid Garden was
examined as PW5. He identified entry No.4308 dated 14.12.2011 made in
the Hotel Register and deposed that as per the said entry at Srl. No.4308,
Accused Harish Sharma and Prosecutrix 'PD' checked into their hotel on
14.12.2011 at about 6 PM and checked out on 16.11.2011 at 7:45 AM and
that Room No.208 was allotted to them. He also deposed that the copy of
driving licence of Accused Harish Sharma was taken at the time of allotting
the said room to them as identity proof as per the aforesaid entry in the
register. He also proved photocopy of the said entry as Mark PW5/A.
12. PW6 Sh.D.R.Sarna, Chief Ticket Inspector, Nizamuddin
Railway Station, Delhi deposed regarding handing over of the certified copy
of Railway Chart for 28.07.2012 with respect to train No.12807 Samta
Express to one police official in the month of September, 2013 and proved the
same as Ex.PW6/A. He further deposed that the said certified copy had been
prepared from the original records which is submitted by the TT of the
concerned train at their railway station upon termination of journey. He also
proved the certificate given by him in this regard as Ex.PW6/B.
13. PW7 Sh.Manohar Lal was examined in order to prove the Guest
Entry Register, CCTV footage and documents pertaining to stay of Accused
and Prosecutrix in hotel Orchid Garden, DBG Road, Delhi for the period
14.12.2011 to 16.12.2011. This witness also proved the original guest entry
register which was seized vide seizure memo Ex.PW7/A and the
photocopies of the entry bearing No.4308 dated 14.12.2011 at page 50 of the
register along with documents furnished by Accused Harish Sharma and other
documents as Ex.PW7/P2 (Colly) (running into 08 pages.).
14. PW8 Sh.Javed Akhtar, who is working in IDBI
Bank,Muradabad Branch as Assistant Manager produced the summoned
record i.e. Original attendance register of their branch for the period January,
2012 till June, 2013 and proved the attendance sheets for the months of
September, 2012 and October, 2012 as Ex.PW8/A and Ex.PW8/B
respectively. He further deposed regarding the attestation of the said
attendance sheets by their Branch Manager Sh.Shehbaz Imam and also
identified his signatures as he had seen him writing and signing inthe regular
course of his duty in the bank.
Doctors:
15. PW4 is Dr.Neelima, who prepared the MLC (Ex.PW4/A) of the
Prosecutrix on 26.09.2012 on the basis of alleged history given by her. This
witness further deposed that the Prosecutrix again came to the hospital on the
intervening night of 2627.11.2012 and she examined the Prosecutrix after
obtaining her consent. PW4 also proved her detailed as Ex.PW4/B on the
back side of MLC Ex.PW4/A, bearing her signatures at point A. She collected
some exhibits, sealed with the seal of hospital and handed over the same to the
accompanying police officials.
Police officials :
16. Remaining witnesses pertain to investigation which include Duty
Officer HC Brijpal Singh, who was examined as PW2. He deposed regarding
recording of the FIR on 26.09.2012 and proved the computerized copy of the
same as Ex.PW2/A and his subsequent endorsement on the same as
Ex.PW2/B.
17. W/SI Pushpa was examined as PW13. She deposed that on
25.05.2012 while she was posted at PS DBG Road, the complaint of the
Prosecutrix was assigned to her and she made inquiries from her. The
Prosecutrix trold her that she had also filed a complaint against the Accused
Harish Kumar in Mahila PS Raipur, Chhatisgarh and she asked W/SI Pushpa
for keeping her complaint pending for one month as the next date of hearing of
her said complaint was 04.06.2012.
18. PW13 further deposed that on 26.09.2012, Prosecutrix again
came in the PS and requested to take action on her compliant which was given
by her in PS DBG Road on 25.05.2012. PW13 prepared the rukka on the said
complaint vide Ex.PW13/A and got registered the FIR. After registration of
the FIR, investigation of this case was assigned to W/SI R.P. Minz and PW13
handed over all the relevant documents to W/SI R.P. Minz.
19. Ct. Lal Chand was examined as PW14. He deposed regarding
handing over of rukka and copy of FIR to W/SI R.P.Minz for investigation on
26.09.2012.
20. PW15 is H/Ct. Raj Dulari who along with IO/WSI R.P. Minz
took the Prosecutrix to LHMC hospital on 26.09.2012 for her medical
examination. She further deposed that the examining doctor handed over some
sealed exhibits to her which she handed over to the IO, who later seized the
same vide seizure memo Ex.PW10/A.
21. Insp.R.P. Minz stepped into witness box as PW10. She deposed
that on 26.09.2012, investigation of this case was assigned to her. ASI Pushpa
handed over all the relevant documents to her. PW10 got the Prosecutrix
medically examined at LHMC hospital and collected the MLC and sealed
exhibits of Prosecutrix from HC Raj Dulari, which were given to her by
examining doctor and seized the same vide seizure memo Ex.PW10/A.
PW10 also prepared the site plan of hotel Orchid Garden, DBG Road
(Ex.PW1/PA) and deposited the exhibits in the malkhana and recorded the
statement of witnesses. She also searched for the accused at Muradabad along
with police staff but he could not be found there. PW10 lastly deposed that
on 05.10.2012, she deposited the case file with MHC(R) of PS DBG Road as
the investigation was transferred to some other officer.
22. MHCM HC Ajay was examined as PW11. He deposed regarding
deposit of sealed exhibits during the course of investigation on 27.09.2012,
28.10.2012, 02.11.2012 & 31.10.2012 and proved their entries made by him in
the Register No.19 as Ex.PW11/A, Ex.PW11/B, Ex.PW11/C and
Ex.PW11/D respectively.
23. Ct.Pradeep Bisht was examined as PW12. He deposed regarding
taking of sealed exhibits vide RC No.51/21/12 from Malkhana on 022.11.2012
on the directions of the IO and depositing of the same in FSL Rohini. He
further deposed regarding handing over the copy of RC and acknowledgment
to MHC(M).
24. PW9 is IO/WSI Sangeeta to whom further investigation was
assigned on 26.10.2012. She arrested the Accused upon his surrender in the PS
on 28.10.2012 vide arrest memo Ex.PW9/A and also conducted his personal
search memo Ex.PW9/B. As the Accused was on anticipatory bail, she
released him after formal arrest. She also got the Accused medical examined
vide MLC Ex.PW9/C and also got conducted his potency test.
25. PW9 also prepared the seizure memos of the various articles
which she seized during the course of investigation, recorded the statement of
witnesses pending FSL result, completed the investigation, prepared the charge
sheet and filed the same in the court.
26. PW9 further deposed regarding collection of FSL result i.e.
Biological Examination (Ex.,PW9/G) and Handwriting Expert Report
(Ex.PW9/H) and filed the same before the court.
STATEMENT OF ACCUSED UNDER SECTION 313 Cr.P.C.:
27. In his statement recorded under Section 313 Cr.PC, Accused
Harish Sharma pleaded innocence and his false implication in this case. He
stated that Prosecutrix in fact blackmailed him in order to extract money from
him and on his refusal to do so, she got this false case registered against him.
He further stated that he never established physical relations with the
Prosecutrix at any point of time. Accused did not lead any evidence in his
defence.
ARGUMENTS, ANALYSIS AND FINDINGS :
28 I have heard detailed arguments advanced by learned defence
counsel and learned Addl. PP for the State and have also gone through the
written submissions filed by the defence and the relevant case law cited in the
course of arguments.
29. On the one hand learned Addl. PP submitted that it is established by
the testimony of the Prosecutrix 'PD' that the accused established physical
relations with her after giving her assurance of marriage and thereby obtained
her consent for physical relations by keeping her under misconception of fact
and thus committed rape upon her. On the other hand, learned defence
counsel submitted that the Prosecution has failed to prove the charges against
the accused.
30. It was submitted by learned defence counsel that the entire case of
the Prosecution is false and there is an unexplained delay of more than 9
months in the registration of the FIR. Moreover, even the complaint dated
25.05.2012 on which the FIR was subsequently registered was also made by
the Prosecutrix after the lapse of more than 05 months from the date of the
alleged incident. Further, she also requested the police officials not to take any
action against the accused till her further instructions and as per the charge
sheet, she did not respond till 26.09.2012 despite best efforts by the police.
31. It was further submitted by learned defence counsel that the
Prosecutrix has made mutually contradictory allegations against the accused
by alleging on the one hand that the accused forcibly established physical
relations with her during the period from 14.12.2011 to 15.12.2011 and on the
other hand she claimed that the accused established physical relations with her
on the promise of marriage. It was contended that these mutually
contradictory claims of the Prosecutrix are sufficient to demolish the entire
case of the Prosecution.
32. It was further submitted that the Prosecutrix is an educated girl
aged about 35 years and she entered into physical relations with the accused,
apparently, with her consent and knowing fully the consequences of her act.
Learned defence counsel thus submitted that the physical relations, if any,
established between accused and the Prosecutrix were consensual in nature
and by no stretch of imagination can be termed as rape, as alleged by the
Prosecutrix. It is thus alleged that the accused deserves to be acquitted for the
alleged offence under Section 376 IPC as the said allegations have not been
proved against him.
33. For appreciating and analyzing the rival submissions during the
course of arguments, it is necessary to deal with the testimony of
Prosecutrix/PW1 'PD', who is the most material witness of Prosecution.
34. Prosecutrix/PW1 deposed that she is post graduate and has
completed her M.Com and her date of birth is 29.05.1980. She created her
profile on jeewansathi.com sometime in the year 2010 and uploaded the
profile of accused Harish Sharma, which she liked and she sent a request to
him on the website. Thereafter, Accused contacted her telephonically and
they started interacting with each other and remained in touch for about 1½
year.
35. On 14.12.2011, accused asked her to come to Delhi to meet his
family members. She reached Delhi by train in the evening of 14.12.2011 and
Accused took her in a TSR to a hotel namely Orchid Garden at DBG Road
from Hazrat Nizammuddin Railway Station. She further deposed that accused
asked her not to say anything before the hotel Manager. He made an entry in
the hotel register and took a room in that hotel and introduced her as his
fiancee. When she inquired from the Accused as to why he has brought her
there, he told her that his family members will come after two days to meet
her and that he will introduce her to them in the same hotel.
36. Prosecutrix/PW1 further deposed that Accused made her stay in
the hotel for two days and during this period he established physical relations
without her consent and despite her refusal several times. When she tried to
object, Accused use to give her assurance that he will marry her and that his
family is also coming to meet her for the purpose of their marriage.
37. After two days, Accused told her that his mother has suddenly
fallen ill and that he will have to go to his house. He also asked her to return
to her house at Raipur and assured her that he will come there along with his
family to talk about their marriage.
38. PW1 also deposed that thereafter when she tried to call up the
accused, he did not take her calls nor replied to her messages. Finally, she
contacted one Advocate namely Mr.Yuvraj Singh, who called the accused on
28.02.2012, but Accused flatly told him that he does not know any 'P.D'. She
further deposed that the accused finally talked to her and asked her to give
him one month's time, but he did not contact her. Finally, she approached
Mahila Thana at Raipur, where the matter was referred to Mediation Centre
(Paarivarik Paramarsh Kendra), but Accused did not appear despite service of
notice for four dates. Thereafter, she got the case registered against the
Accused on the basis of her complaint dated 25.05.2012 (Ex.PW1/A).
39. PW1 also deposed that she handed over the clothes which she
was wearing at the time of the incident to the police during the course of
investigation in the month of October, 2012 and they were seized by the
police vide seizure memo Ex.PW1/B. She also handed over 06 railway
tickets of her journey to and fro from Raipur to Delhi which were seized vide
seizure memo Ex.PW1/C. Prosecutrix/PW1 correctly identified the clothes
which she had given to the police when the same were produced and shown to
her in the court.
40. On the basis of the aforesaid testimony of the Prosecutrix and
other evidence led on record in the course of trial, including the guest entry
register of Hotel Orchid Garden, DBG Road, Delhi produced by PW7
Sh.Manohar Lal, which has been established on record by the Prosecution that
the Accused and the Prosecutrix stayed in hotel Orchid Garden at DBG Road,
Delhi from 14.12.2011 till the morning of 16.12.2011 in Room No.208 of the
said hotel. PW1 testified that the accused took her to the said hotel from
Hazarat Nizammuddin Railway Station in a TSR and upon inquiry he
informed her that he is taking her there to meet his family members.
41. It would be pertinent to note that it is not in dispute that the
Accused is a resident of Moradabad, UP. In her crossexamination dated
25.09.2014 Prosecutrix/PW1 also deposed that she had visited Muradabad in
the month of May, 2012 to meet the accused. Thus, admittedly, the accused
was not residing in Delhi along with his family. Prosecutrix 'PD', who was in
touch with the accused since about 1½ year prior to 14.12.2011, would also,
in all probability, be well aware that the Accused and his family members
were not residing in Delhi. It has also emerged from her crossexamination
that she did not inform her family members that she was going to Delhi to
meet the Accused when she left from Raipur on 13.12.2011. In fact, the
Prosecutrix deposed that she lied to her family members that she has to attend
some official work in Delhi and did not reveal that she was going to Delhi to
meet the Accused and his family members. It is also borne out from her
crossexamination that in fact, all her family members had reserved their train
tickets for going to Mathura for 16.12.2011 and Prosecutrix had cancelled her
reservation for 16.12.2011 and preponed her programme for reaching Delhi
two days prior thereto i.e. on 14.12.2011. Thus, she apparently altered her
travel plans without informing her family members and reached Delhi on
14.12.2011, knowing fully well that the Accused and his family members did
not reside in Delhi. It is not her claim that the family members of Accused
were also coming to Delhi from Moradabad, UP to meet her. It is also
apparent on going through the testimony of Prosecutrix that the Accused
checked into the hotel Orchid Garden, DBG Road, Delhi on 14.12.2011 in her
presence and introduced her as his fiancee to the hotel staff. Even at that time
the Prosecutrix did not object to the same.
42. It is also noteworthy that in the course of her crossexamination
recorded on 25.09.2014, Prosecutrix 'P.D.' also stated that she had informed
her parents that she is going to Delhi on an official tour and the
accommodation will be arranged by her office. It has also come on record that
she had plans to reach Vrindavan, Mathura on 16.12.2011, for which date her
parents had also reserved her train tickets. It is thus obvious that the
Prosecutrix reached Delhi on 14.12.2011 and intended to stay there till
16.12.2011. It is not her claim that she had made any reservations for her stay
during the period from 14.12.2011 to 16.12.2011. Thus apparently, when the
Prosecutrix reached Delhi on 14.12.2011, she had already planned to stay till
16.12.2011. She was introduced by the Accused as his fiancee when they
reached hotel Orchid Garden, DBG Road, Delhi. She admittedly raised no
alarm or noise when the accused allegedly raped her in the said hotel. Her
claim that the Accused forcibly committed rape upon her and also gave her
assurance of marriage is indeed selfcontradictory.
43. It is also pertinent to note that as per the testimony of
Prosecutrix, the Accused established physical relations with her several times
during the aforesaid period despite which she did not make any effort to leave
the hotel and she only checked out with the Accused in the morning of
16.12.2011, and not prior thereto. In her crossexamination 'P.D.' also stated
that she went to Mathura to meet her Gurji after checking out from the hotel
on 16.12.2011 and did not reveal about the incident to anyone.
44. The above conduct of the Prosecutrix thus indicates that the
physical relations between her and Accused, were established with her
consent. The claim of the Prosecutrix that the Accused had assured her that
he will marry her and thus obtained her consent under the said misconception
of fact, to my mind, is not sufficient to cover the case within the definition of
rape under Section 375 IPC.
45. It is well settled law that a promise to marry without anything more
will not give rise to “misconception of fact” within the meaning of Section 90
IPC. In the case of N.Jaladu ILR (1913) 36 Mad 453 relied upon by the
Hon'ble Apex Court in Deelip Singh @ Dilip Kumar vs. Stae of Bihar, 2005
SCC (Crl.) 253, it has been held that a representation deliberately made by the
Accused with a view to elicit the assent of the victim without having the
intention or inclination to marry her, will vitiate the consent. If on the facts it
is established that at the very inception of the making of promise the accused
did not really entertain the intention of marrying her and the promise to marry
held out by him was a mere hoax, the consent ostensibly given by the victim
will be of no avail to the accused to exculpate him from the ambit of Section
375 clause secondly IPC.
46. It is equally well settled that the onus to prove the absence of
such consent lies solely upon the Prosecution. In the present case having
regard to the evidence led on record, I find that the Prosecution has failed to
discharge this onus. There is not even an iota of evidence on record to
establish that the accused did not entertain the intention of marrying the
Prosecutrix since the very inception or that the consent of the Prosecutrix
obtained by him ostensibly on the promise of marriage gave rise to any
misconception of fact within the meaning of Section 90 IPC.
47. In fact the testimony of the Prosecutrix itself reveals that the
Accused had been telling her that he has not been able to remain in touch with
her on account of illness and hospitalization of his mother. Similarly, in the
transcript Ex.PW1/PF, Accused is pleading with the Prosecutrix to let his
mother recover first.
48. Though the Prosecutrix has also claimed that she contacted one
Advocate namely Sh.Yuvraj Singh, who called the accused on 28.02.2012,
but Accused flatly told him that he does not know her, yet Mr.Yuvraj Singh,
Advocate has neither been cited nor examined by the Prosecution as a witness
to substantiate this allegation of the Prosecutrix. There is nothing on record to
establish that the Accused from the very beginning did not intend to marry
Prosecutrix or that the promise to marriage held out by him was false from its
very inception.
49. A perusal of the complaint made by the Prosecutrix at Mahila
Thana at Raipur (Mark PW1/PX1) also reveals that the Prosecutrix made the
said complaint on the advise of her known persons, who told her that it appears
that accused has ditched her and she should report the matter to the police. In
the said complaint, the Prosecutrix has herself mentioned that before making
any report, she wants to settle the matter with the Accused and that he should
be called to the Mediation Centre. Moreover, the Prosecutrix also admitted
having sent the text messages Ex.PW1/DA to the Accused after the date of the
alleged incident. The transcript Ex.PW1/PE also reveals that the Proesutrix
and Accused were saying 'I Love you' to each other in the said conversation.
50. Considering the above evidence in its totality and keeping in
view the facts of the case, it is apparent that the Prosecutrix and the
Accused had entered into consensual physical relationship. The
Prosecution, as aforesaid, has not led any evidence to establish that when the
Accused extended assurance of marriage to the Prosecutrix, it was a false
promise or that he did not entertain any intention of marrying the
Prosecutrix from the very inception. In absence of any cogent evidence to
this effect , it cannot be held that the Prosecutrix gave her consent for physical
relationship with the Accused under any misconception of fact as per the
mandate of Section 90 IPC or that her consent was vitiated on account of any
such misconception given to her by the Accused at any point of time.
51. Accordingly, in the light of the above discussion, I am of the
considered opinion that the Prosecution has failed to bring home charge for the
offence punishable under Section 376 IPC against the Accused Harish Sharma.
Accused Harish Sharma S/o Sh.Yadram Sharma is hereby acquitted of the
offence punishable under Section 376 IPC. His bail bond stands cancelled.
Surety Discharged. File be consigned to Record Room.
Announced in the open Courton 31st day of October, 2015.
(Kaveri Baweja)
Additional Sessions Judge Special FTC2 (Central)
Tis Hazari Courts: Delhi.