Download - State v Ashish Kumar - ASJ Virender Bhat - Dwarka Courts - New Delhi - Premarital Sex

7/22/2019 State v Ashish Kumar - ASJ Virender Bhat - Dwarka Courts - New Delhi - Premarital Sex

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IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIALFAST TRACK COURT), DWARKA COURTS, NEW DELHI.

SC No. 109/13.

U!"#$ C%&$ ID No. 0'0R0'*+3'011.

S%$ V&. A&-!&- K#%,S/o S-. B%!2$ P%,R/o A', K!% 4%2$,

U% N%5%,N$ D$-!.

D%$ o6 I&!#!o 7 '9.*.'011.

FIR No.13 2%$2 '1..'011.U/&. 3+8/08 IPC.P.S. B!2%#.

D%$ o6 $&$:!5 ;#25$/O2$ 7 0.1'.'013.D%$ o6 oo#


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me. He committed seual intercourse with me se!eraltimes and I had become pregnant somewhere in the

month o" July, 200#. I in"ormed him about the same

and as$ed him to solemni%e marriage with me but he

sought some time to con!ince his "amily and to marry

his two elder sisters "irst. He insisted me to abort and

when I re"used, he blac$mailed me saying that he

would not marry me i" I did not abort. &here"ore, I gotmy pregnancy aborted. All the times, he $ept on

promising me that he would marry me a"ter the

marriage o" his sisters. 'hen both o" his sisters had

got married, I as$ed him to solemni%e marriage with

me but he again re(uested "or some more time. 'hen

I came to $now that he is getting married with

someone else, I rushed to his house in )elhi on0*.+.20. I stayed in his house "or 2 days and he

had seual relations with me at his house se!eral

times during that period. He had ta$en la$hs o" rupees

"rom me "or our marriage. -n 2*.+.20, he and his

parents too$ me to athan$ot /unab1 to solemni%e

my marriage with him but there all the "amily

members abused, harassed and insulted me. &hey told

me that since my parents are not ali!e, there is

nobody to support me and to "ight "or me. &herea"ter,

he too$ me to Amritsar saying that he will get married

to me there but he le"t me in "ront o" a gurudwara and

disappeared. I tried to contact him on his mobile

phone as well as on the mobile phone o" his "ather but

both the mobile phones were switched o"". rom

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Amritsar, I returned to )elhi alone by train on0.3.20. 'hen I reached his home, nobody was

there. I ha!e been cheated, harassed and insulted and

hence I re(uest you to ta$e necessary action against

them.4

3. -n the basis of aforesaid (ritten complaint of the

prosecutri$# I (as registered u/s.376/506 IP and investigation(as handed over to *I omnica. *he recorded statement of the

prosecutri$ u/s.161 r.P and got her medicall% e$amined in

2ospital on !1.5.!011 vide 4 o.1/11. 8$hibits handed over

b% the doctor (ere sei9ed b% her. Prosecutri$ (as not having in

her possession an% document regarding the abortion. -n

!3.5.!011 she (as produced before the 4d. agistrate# (ho

recorded her statement u/s.16: r.P. I- collected the schoolcertificate of the prosecutri$ regarding her age (hich reveals her

date of birth to be !.3.1. "ccused came to be arrested on

0.6.!011. 2e (as got medicall% e$amined in 2ospital and

the e$hibits handed over b% the doctor (ere sei9ed. "ll the

e$hibits (ere sent to *4 for forensic e$amination. "fter the

completion of the investigation# harge *heet (as prepared and

submitted to the concerned 4d. agistrate.

:. pon committal of the case to the court of *essions#

harge u/s.376/506 IP (as framed against the accused on

!!.1!.!01!. "ccused ab;ured his guilt and accordingl% prosecution

(as called upon to lead its evidence.

5. The prosecution has e$amined 10 (itnesses to

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establish the guilt of the accused. 4d. "PP also tendered inevidence the *4 results 8$.P" < 8$.P+. The accused (as

e$amined u/s.313 r.P on 0!.7.!013 (herein he admitted that he

had started friendship (ith the prosecutri$ through =ahoo chat on

internet and used to meet her occasionall% but denied that he had

committed se$ual intercourse (ith her at an% point of time. 2e

claimed false implication in this case.

6. The accused has e$amined himself as >1 in his

defence. uring the course of his testimon%# he produced the

printout of various 8?mails and chats (hich had ta@en place

bet(een him and the prosecutri$ and (hich have been mar@ed as

ar@?" to ar@?*. The accused also e$amined his (ife as >!.

>3 is the *enior 8$ecutive of =ahoo India Pvt. 4td.# (ho deposed

that 8?mail Id Aashish@umar:B%ahoo.comC (as generated b% r."shish Dumar on 15..!00: and he had provided his alternate 8?

mail address as Amrashish@umar:Bgmail.comC. 2o(ever# the

(itness deposed that his office is unable to provide an% date

regarding 8?mail Id Adi%aEspiritB%ahoo.comC as the same is

registered in * omain and not in Indian omain. 2e proved his

affidavit in this regard as 8$.>3/+. >: is the anager

'"dministration and 2)# ./s. Deppel 4and International 4imited#

+angluru# (ho deposed that 8?mail Id AparvatiBelitahomes.comC

(as allotted b% their compan% to s. Parvati during the course of

her emplo%ment (ith the compan% and further stated that he has

not brought the records pertaining to said 8?mail Id as those have

alread% been erased b% the compan%. >5 is "ssociate anager

acilities# Infos%s 4imited# (ho deposed that the records pertaining

to official 8?mail account allotted to accused "shish has alread%

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been deleted from the records and are not available (ith thecompan%. 2e proved his detailed affidavit in this regard as

8$.>5/".

7. I have heard 4d. "PP# 4d. ounsel for the accused and

have perused the entire record.

. 4d. "PP vehementl% argued that accused has deceivedthe prosecutri$ b% ma@ing her to submit herself to intercourse (ith

him on the promise that he (ould marr% her (hich promise he

never intended to fulfill. *he submitted that it is evident from the

testimon% of the prosecutri$ that she gave consent for se$ual

intercourse (ith the accused onl% on the promise and assurance of

the accused that he (ould marr% her at an% cost. "ccording to

her# the accused obtained consent of the prosecutri$ to the se$ualintercourse b% deceit and fraud and hence he has committed the

offence of rape. *he further submitted that the printouts of 8?mails

and chats ar@?" to ar@?* produced b% the accused during his

testimon% cannot be loo@ed into as those are not accompanied b%

certificate u/s.65+ of Indian 8vidence "ct and for the reason that

those have not been put to the prosecutri$ in her cross

e$amination so as to elicit her comments regarding those.

2o(ever# she further submitted that even if these 8?mails and

chats are read in evidence# these support the case of the

prosecution that the accused had been assuring and promising the

prosecutri$ at ever% moment that he (ould marr% her. "ccording

to her# the accused is liable to be held guilt% for the offence of

rape.

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. -n the other hand# 4d. ounsel for the accusedvehementl% argued that there is no iota of evidence on record to

suggest that the accused at an% point of time promised the

prosecutri$ that he (ould marr% her. 2e submitted that the

prosecutri$ has mentioned neither in her (ritten complaint to the

police nor in her statement u/s.16: r.P that in her e$amination

in chief that she consented to intercourse (ith the accused onl% on

getting of assurance from the accused that he (ould marr% her.2e further submitted that the prosecutri$ has not mentioned in her

e$amination in chief the date (hen the se$ual intercourse too@

place bet(een the t(o for the first time and (hen the accused

made promise to her for the first time that he (ould marr% her. 2e

submits that even if it be assumed that accused had promised the

prosecutri$ that he (ould marr% her# still there is no evidence on

record that he had done so before engaging him in se$ualintercourse (ith her. 2e further submitted that the 8?mails and

chats bet(een the accused and the prosecutri$ ar@?" to ar@?*

are admissible in evidence as the% are supported b% the affidavit

of the accused# (ho had ta@en these printouts from the computer

and therefore the affidavit of the accused can be read as a

certificate u/s.65+ of the 8vidence "ct. 2e further submitted that

the accused (as not obliged to confront the prosecutri$ b% these

8?mails and chats during her cross e$amination. "ccording to him#

the accused is liable to be acFuitted.

10. The testimon% of the prosecutri$ is the most vital and

important piece of evidence for the prosecution in the instant

case. *he has been e$amined as P>. *he has disclosed her age

as !7 %ears. *he deposed that she had started chatting (ith the

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accused on internet in "pril/a%# !006 and ultimatel% bothbecame friends. The% met each other for the first time in +anglore

on 1:.7.!006 and enFuired about each other ;ob# famil% status etc.

"t that time# accused (as (or@ing (ith /s. Infos%s and (as

posted at %sore. Thereafter the accused used to visit +anglore

and met her at her house on (ee@ends and holida%s. "fter

sometime# the accused e$pressed his interest in solemni9ing the

marriage (ith her. 2e promised her that he (ould marr% her afterthe marriage of his t(o elder sisters# one of (hom (as divorcee.

2e e$pressed his inabilit% to get engaged to her but convinced her

that he (ould definitel% marr% her. 2e introduced her to his

parents and sisters and made her to tal@ to them on phone from

+anglore. *he further deposed that in the mid of ovember# !006

she along(ith accused (ent to her native place in 2%derabad to

meet her parents. "ccused convinced her that he (ould persuadehis parents and her sister also that he is going to marr% her. "fter

returning from 2%derabad# accused started sho(ing ph%sical

interest in her and as@ed her to engage into se$ual intercourse

(ith him but she sho(ed her disinclination for the same. *he told

her that the% should (ait uptill marriage but the accused provo@ed

her mentall% to such an e$tent that she had to give in. 2e told her

that he is going to be her husband and there is nothing (rong to

have se$ual intercourse (ith him. "fter intense mental and

ph%sical provocation# she engaged into se$ual intercourse (ith

him man% a times# as a result of (hich she had become pregnant

in the month of Gul%# !00 and later on had to abort the same at

the instance of the accused. *he further deposed that in ebruar%#

!00 accused got transferred to Pune office of Infos%s. *he (ent

to meet him in Pune in "ugust# !00# sta%ed (ith him for three

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da%s and thereafter accused committed intercourse (ith her. *heagain (ent to Pune in ovember# !00 and sta%ed (ith the

accused for t(o da%s. 8ver% time (hen she met the accused# he

convinced and assured her that he (ould marr% her. >henever

she as@ed him about the marriage# he used to tell her that his

sister&s marriage is fi$ed for a%# !010 and the% should (ait till

that time. *he had also helped the accused financiall% b%

transferring a huge amount to his ban@ account. *he furtherdeposed that in Gune# !010 the accused moved to elhi and told

her that since both of his sisters have been married# it is turn for

their marriage. *he came to elhi on 07..!010 and sta%ed in the

house of the accused for t(o da%s. 2e introduced her to his

parents and also had intercourse (ith her. "ccused promised and

assured her in front of her parents that he is going to marr% her. In

ovember#!010 she again visited the house of accused in elhi tofi$ the date of marriage but this time his parents told her that

accused is angli@ and the% should (ait for his marriage till he

completes !7 %ears of age. *he decided to (ait for fe( more

months till the accused completed !7 %ears of age. -n return from

elhi# she came to @no( from other sources that the parents of

the accused are searching for some other girl for the accused. *he

confronted the accused (ith the same but he denied all this sa%ing

that he cannot get married to an% other girl till he completes !7

%ears of age. *he again came to the house of the accused in elhi

on 0.:.!011 and sta%ed there for !1 da%s but during this period

she (as shoc@ed to see the behaviour of the accused&s parents

(ho told her to go bac@ and (ait further. *he (as thro(n out of

the house b% the parents of the accused in the night of 0.:.!011

itself and accused also slapped her but later on she (as allo(ed to

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come inside the house and sta% there. uring this period of !1da%s also accused @ept on assuring that he is going to marr% her.

uring that period also# the% had se$ual intercourse (ith each

other. -n 16.:.!011 accused too@ her to (ar@a ourt and

introduced her to a la(%er namel% eepa@ *ingh *indhu sa%ing

that he is planning a court marriage (ith her. The% filled up

marriage application form and accused paid a sum of s.10#000/?

to the la(%er as fee. "fter some da%s# accused told her that the%should not go for a court marriage as he is the onl% son of his

parents and his parents (ant a proper marriage to solemni9e at

their native place in Pathan@ot# Pun;ab. *he further deposed that

on !.:.!011# she along(ith accused# his parents and his cousin

2app% (ent to Pathan@ot# Pun;ab# in train and reached there in the

morning of 30.:.!011. The uncle of the accused and his aunt came

to receive them at rail(a% station and too@ them to 2otel *ta%(ellnear the rail(a% station. *oon after the% chec@ed into the hotel#

accused as (ell as his parents started sho(ing true colours. The%

abused her# beat her and used foul and filth% language (ith her.

"ccused also gagged her mouth (hen she tried to shout. "ccused

told her that he (as onl% enacting a drama and (hatever

happened bet(een them should be forgotten. In the afternoon of

30.:.!011 accused and his cousin 2app% too@ her to Holden

Temple# "mritsar# sa%ing that accused (ould marr% her there.

The% reached "mritsar at 6 p.m. and in front of the Holden Temple

also# accused assured her that he (ould marr% her. 2e told her to

close her e%es and pra% to the Hod. *he closed her e%es and

started pra%ing. "s soon as# she opened her e%es# she found that

the accused and his cousin had left and she (as alone. *he dialled

mobile number of the accused and his parents but all (ere

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s(itched off. *he called the brother?in?la( of the accused (hosta%s at +anglore but he also feigned ignorance about the

accused. *he sta%ed at "mritsar for the night and ne$t da% came

to elhi. *he directl% (ent to the house of the accused but it (as

loc@ed and the neighbours did not @no( an%thing about the

accused and his famil% members. *he sta%ed at elhi for some

da%s and tried to contact the accused but did not succeed.

ltimatel%# she visited P.*. +indapur and submitted a (rittencomplaint# on the basis of (hich I (as registered. *he (as

produced before a agistrate# (ho recorded her statement u/s.

16: r.P 8$.P>:/". "ccording to her# accused (as arrested from

his house in her presence on 0.6.!011 vide arrest memo

8$.P>!/".

11. In her cross e$amination# prosecutri$ 'P>) deposedthat she had been doing ;ob (ith /s. Deppel 4and international

4imited# +anglore# since the %ear !005 and her ;ob (as of

secretarial and administrative nature. *he ;oined + Hroup in

"ugust# !011. *he has been residing independentl% as a tenant in

+anglore since the %ear !003 and (as pa%ing a sum of s.5#000/?

as rent per month for one room set. *he further deposed that the%

'accused and the prosecutri$) had intercourse for the first time in

the month of ovember# !006 at the house of the accused at

+anglore. *he deposed that the accused had sho(ed interest in

getting marriage to her at the time of their first meeting itself i.e.

1:.7.!006. Thereafter he slo(l% used to put it in her mind that he

(ould marr% her. In the month of "ugust# !006# he promised that

he (ould marr% her but did not give an% specific time frame for

marriage. *he met the parents of the accused for the first time in

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*eptember# !00 at the time marriage of his elder sister at+anglore. *he deposed that the purpose of visit of accused to her

native house at 2%derabad in ovember# !006 (as to assure her

famil% members about their marriage and nothing else. *he

e$plained that b% his statement in the e$amination in chief that

the accused mentall% provo@ed her to have se$ual intercourse

(ith him# she meant that he convinced her as (ell as her famil%

members that he (ould marr% her in an% event and there isnothing (rong in having se$ual intercourse bet(een them before

the marriage. *he consented to the se$ual intercourse (ith him

onl% because of his promise of marriage even though he did not

give an% definite time frame for marriage and told her that

marriage (ould be possible onl% after the marriage of his t(o

sisters. The accused used to tell her that if she is not going to

satisf% her husband i.e. him# (here (ill he go. " specific Fuestion(as put to her b% the 4d. ross e$amining ounsel that if she had

an% @ind of fear that if she did not engage in se$ual intercourse

(ith the accused# he (ould not marr% her or that she had an% @ind

of temptation that he (ill marr% her onl% if she had intercourse

(ith him. *he replied that the onl% reason for (hich she consented

to have se$ual intercourse is that she had become convinced that

he (ould marr% her. *he further deposed that after she had come

to @no( about her pregnanc%# she informed the accused# (ho

advised her to abort the same. "ccordingl%# she visited the clinic

of r. *umangla near her residence at +anglore and consumed the

tablets (hich (ere prescribed b% the doctor. The tablets (ere

purchased b% the accused but she did not remember e$actl% ho(

man% tablets did she consume. *he deposed that she had gone to

Pune to meet the accused in "ugust# !00# ovember# !00 and

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"pril# !010. The accused did not come to +anglore from Pune tomeet her. In Pune# she sta%ed (ith the accused at his residence.

1!. rom the aforesaid testimon% of the prosecutri$# it is

evident that she (as about !0 %ears old in the %ear !006 (hen

she started friendship (ith the accused. *he (as (ell educated

and doing a ;ob of secretarial and administrative nature (ith a

reputed compan% of +anglore. *he (as an independent lad% andhad been residing on rent alone in +anglore since the %ear !003.

*he had strong inclination to(ards the accused and used to spend

time (illingl% (ith him. *he used to visit his place of residence off

and on# even in Pune and elhi and spent nights (ith him. The

ph%sical relations bet(een her and the accused had developed

(ith her consent as admittedl%# she had neither offered an%

resistence nor had complained to an%bod% about the acts of theaccused. *he used to e$change 8?mails (ith the accused and used

to chat (ith him and the accused had been giving her assurance

that he (ould marr% her but never gave an% specific time frame

for the same. *he continuousl% used to have ph%sical relations

(ith the accused till the %ear !011.

13. To rebut the allegations levelled b% the prosecutri$

against him# the accused has entered the (itness bo$ himself as

>1. 2e disclosed his aged as ! %ears and deposed that he

;oined Infos%s in a%# !006 as *%stem 8ngineer and remained

there till Gune# !010# (hen he ;oined "ccenture *ervices Pvt. 4td.

2e (as sta%ing in +anglore from -ctober# !006 to ebruar%# !00.

2e deposed that initiall% he (as chatting (ith the prosecutri$ at

her 8?mail I i%aEspiritB%ahoo.com. *he has sent her

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photographs through 8?mails on 05.7.!006 and 10.7.!006 but hedid not repl% his 8?mails. "fter a fe( da%s# the prosecutri$ made a

call on his mobile number sa%ing that the% should start friendship

as the% share common vie(s. "s per her reFuest# the% met at

+anglore bus stand in the end of Gul%# !006 for the first time (hen

he (as coming to elhi. *he told him that she is in a depressed

state of mind as a person named mesh (ith (hom she (as in a

relationship had got married. Thereafter# she @ept on calling himregularl% and also used to come to meet him at his office. 2e

deposed that he never promised to marr% the prosecutri$. 2e also

did not convince her parents about their marriage at the time of

their visit to her native village. "ccording to him# it (as the

prosecutri$# (ho had been insisting upon him to marr% her but he

had told her categoricall% that his focus is on his career and not on

marriage. 2e also deposed that the prosecutri$ told him that herfriend upa had found a match for her but she turned do(n the

proposal as she (anted to marr% him. "t that time also# he

re;ected the marriage proposal. 2e deposed that the prosecutri$

@ept on calling him and during those calls# she (as alluring him to

have ph%sical relations (ith her. -n 1:.5.!00 she told him that

she is going to marr% a bo% named i@ram in Trichi in Tamilnadu.

Thereafter# i@ram assaulted her ph%sicall% and she had sent the

photographs in this regard. *he also demanded s.50#000/? from

him but he did not give mone% to her. Thereafter the prosecutri$

again started insisting upon him to marr% her b% sa%ing that she

(ants to marr% him onl%. 2e further deposed that in Ganuar%# !00

(hen the prosecutri$ had called him for a fare(ell lunch to her

residence in +anglore on the occasion of his transfer to Pune# she

administered some sedatives to him and thereafter started

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tempting him for ph%sical relations but he resisted her temptationsand no se$ual intercourse too@ place. Thereafter# the prosecutri$

again started harassing him b% transferring the amount of s.

1#!0#000/? to his account (ithout an% intimation to him and

(ithout disclosing her account number. 2o(ever# (ith some

difficult%# he got to @no( about the account number of the

prosecutri$ and deposited the amount bac@ in her account. In

ecember# !00 he informed her about his engagement in Pun;ab.*he again transferred a sum of s.1 4ac in his account and told

him that he could not return this amount to her and also closed

her ban@ account. 2e submitted an application to his ban@ i.e.

III +an@ as@ing them as to from (hich account this sum of s.1

4ac had been transferred to his account and vide communication

dated !3..!010 '8$.>1/)# he (as informed that this amount

has been transferred from ban@ account no.01100!3!:!. >henhe made inFuiries from the prosecutri$ about her account number#

she started alleging that he made her to abort her pregnanc% in

the %ears !00 and !010. "gain after one (ee@# she transferred

further sum of s.1 4ac to his account and then closed her

account. 2e returned this sum of mone% also to her. 2e further

deposed that the prosecutri$ got to @no( from some common

friend that his marriage has been fi$ed for 10.5.!011 and she

came to their house in elhi on 0.:.!011. *he told the accused

that she had come in search of a ;ob and is sta%ing at Dhanpur.

2er advocate *h. eepa@ *ingh *indhu telephoned him on

16.:.!010 sa%ing that he had not returned mone% to her and in

that regard# he should meet him in the court. 2e sho(ed all the

transactions to the said advocate and the matter (as settled. *he

reFuested them to ta@e her to Pun;ab for attending the marriage

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ceremon%. "ccordingl%# his parents# his cousin 2app% and theprosecutri$ reached Pathan@ot on 30.:.!011. The parents of

2app% received them at the rail(a% station and the% chec@ed in

2otel *ta%(ell. 2is (ould be (ife and her parents had also come

there. "fter ta@ing meals the% all (ent to Holden Temple. In the

bus# the prosecutri$ (as sitting along(ith his (ife and she told her

that the% 'prosecutri$ and the accused) are alread% married and

(ere residing in +anglore as husband and (ife. 2is (ife informedher parents about the same and in the mean(hile# prosecutri$ ran

a(a% from there. 2is parents?in?la( called off the marriage and

insulted them. "fter fe( da%s# he along(ith his parents (ent to

his in?la(s house# sho(ed all the 8?mails to them and convinced

them that there (as no relationship of husband and (ife bet(een

him and the prosecutri$. The% got convinced and ultimatel%# their

marriage too@ place on !:.5.!011. 2e also deposed that theprosecutri$ has filed a false complaint against him (ith the

intention that he (ould not be able to marr% at elhi and (ould be

constrained to marr% her. "ccording to him# the prosecutri$ had

also tried to hac@ his 8?mail Id (hile he (as in custod% in this case

and after he (as released on bail# the prosecutri$ called his

parents and demanded s.!0 4acs from them or other(ise# she

(ould file a case against them at +anglore. *he has filed a false

complaint against them at +anglore also. 2e filed on record the

printouts of 8?mails and hats e$changed bet(een him and the

prosecutri$# (hich are ar@?" to ar@?*.

1:. In the cross e$amination# he denied that he had

promised to marr% the prosecutri$ in an% of the meetings (ith her.

2e also denied that he had assured her parents that he (ould

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marr% her. 2e deposed that it (as on the insistence of theprosecutri$ that he along(ith his t(o friends visited her house in

her native place. 2e denied that 8?mails ar@? and ar@?* are

fabricated and manipulated. 2e also denied that the prosecutri$

had become pregnant from his loin in Gul%# !00 and he as@ed her

to terminate the pregnanc% or other(ise# he (ould not marr% her.

2e deposed that upon his transfer to Pune on 07.!.!00 he had

not apprised the prosecutri$ about his Pune address. 2e admittedthat the prosecutri$ had come to Pune in "ugust# !00 but denied

that she had visited his residence or sta%ed (ith him for three

da%s or that the% had ph%sical relations during those three da%s.

"ccording to him# the% met in a restaurant in Pune. 2e admitted

that the prosecutri$ had again come to Pune in ovember# !00

but denied that she had sta%ed (ith him at Pune. "ccording to

him# the% met at *aha; =oga temple and other public places. 2ealso denied that the prosecutri$ visited his house in elhi on

07..!010 and he introduced her to his parents but denied that

she sta%ed in their house for t(o da%s. "ccording to him# she left

their house on the same da%. 2e further admitted that the

prosecutri$ had visited their house again in ovember# !010 and

then on 0.:.!011 but denied that she sta%ed (ith them for !1

da%s. "ccording to him# she sta%ed in their house for about : or 5

da%s and he did not e$tend an% promise of marriage during those

da%s and there (as no ph%sical relations bet(een them during

those da%s. 2e also deposed that his father *h. +al(inder Pal has

filed complaint against the prosecutri$ before a 4d. agistrate in

(ar@a ourt# e( elhi# regarding demand of s.!0 4acs made

b% her after he (as released on bail. 2e denied all other

suggestions put to him b% the 4d. "PP.

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15. rom the aforesaid testimon% of the accused# it

appears that there had been no se$ual relations bet(een him and

the prosecutri$ at an% point of time. It is also evident that the

prosecutri$ had been pestering him for se$ual intercourse but he

had been @eeping off from the same deliberatel% as he (anted to

focus on his career. 2e had never made an% promise or assurance

to the prosecutri$ that he (ould marr% her and it is the prosecutri$(ho had been time and again telling him that she (ants to marr%

him and for this reason# she had turned do(n a proposal of

marriage from her friend upa. It is also evident that the

prosecutri$ had once told him that she is going to marr% a bo%

i@ram in Trichi in Tamilnadu but that bo% assaulted her ph%sicall%

and the relations became sour. The prosecutri$ had been

transferring mone% to the ban@ account of the accused time andagain (ithout an% demand from him and (ithout his information#

probabl% to harass him and to create some evidence against him.

*he never sta%ed (ith the accused at his residence at +anglore or

at Pune. *he sta%ed in his house at elhi onl% once and that too

for ;ust : or 5 da%s. *he @ne( that the accused is going to marr% a

girl in Pun;ab on 10.5.!011 and had accompanied his famil% to

Pathan@ot on 30.:.!011 to attend the marriage ceremon% and

there she told the accused&s (ould be (ife that she is alread%

married to the accused and the% have been residing at +anglore

as husband and (ife.

16. ndoubtedl%# in cases involving offence of rape# the

testimon% of the prosecutri$# if found to be (orth% of credence as

(ell as reliable and inspiring confidence reFuires no corroboration

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and court ma% convict the accused on the basis of her soletestimon%. *he is undoubtedl% a competent (itness u/s.11 of

8vidence "ct and her evidence must receive the same (eight as is

attached to that of an in;ured in case of ph%sical violence.

2o(ever# if for some reason# the court is hesitant to place implicit

reliance on the testimon% of the prosecutri$# it ma% loo@ for some

other evidence on record# (hich ma% lend assurance to her

testimon%# short of corroboration reFuired in case of accomplice. Ifthe court finds it difficult to accept the version of the prosecutri$

at its face value# it ma% search for evidence# direct or

circumstantiall% (hich (ould lend assurance about her testimon%.

It also needs mention that even in cases of rape the onus is al(a%s

on the prosecution to prove affirmativel% all the ingredients of the

offence (hich it see@s to establish and such onus never shifts. It is

not the dut% of the defence to e$plain (h% and ho( the victim andother (itnesses have falsel% implicated the accused. The

prosecution case has to stand on its o(n legs and cannot ta@e the

support from the (ea@ness of the case of defence. 2o(ever# the

great suspicion against the accused and ho(ever strong the moral

belief and conviction of the court# unless the offence of the

accused is established be%ond reasonable doubt on the basis of

legall% 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 b% reliable evidence. The accused

is entitled to benefit of ever% reasonable doubt.

17. In the instant case# the prosecution alleges that the

accused obtained consent of the prosecution for se$ual

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intercourse on the basis of false promise of marriage and thereforethe 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.

1. The *upreme ourt considered this issue at length in

case of U2%> :&. S%$ o6 K%%%?%, '003 (1) JCC 08, AIR

'003 SC 1839and held as under ,

It there"ore appears that the consensus o" udicialopinion is in "a!our o" the !iew that the consent gi!enby the prosecutri to seual intercourse with a personwith whom she is deeply in lo!e on a promise that hewould marry her on a later date, cannot be said to begi!en under a misconception o" "act. A "alse promise is

not a "act within the meaning o" the 5ode. 'e areinclined to agree with this !iew, but we must add thatthere is no strait ac$et "ormula "or determiningwhether consent gi!en by the prosecutri to seualintercourse is !oluntary, or whether it is gi!en under amisconception o" "act. In the ultimate analysis, thetests laid down by the 5ourts pro!ide at best guidanceto the udicial mind while considering a (uestion o"consent, but the 5ourt must, in each case, considerthe e!idence be"ore it and the surroundingcircumstances, be"ore reaching a conclusion, because

each case has its own peculiar "acts which may ha!e abearing on the (uestion whether the consent was!oluntary, or was gi!en under a misconception o" "act.It may also weigh the e!idence $eeping in !iew the"act that the burden is on the prosecution to pro!eeach and e!ery ingredient o" the o""ence, absence o"consent being one o" them.4

1. *imilarl%# in P%2$$ K#% @ P%2$$ K#%

V$% :&. S%$ o6 B!-% %., ('00+) + SCC 13# the

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*upreme ourt observed as under ,

&he "ailure to $eep the promise at a "uture uncertaindate due to reasons not !ery clear on the e!idencedoes not always amount to a misconception o" "act atthe inception o" the act itsel". In order to come withinthe meaning o" misconception o" "act, the "act mustha!e an immediate rele!ance. &he matter would ha!ebeen di""erent i" the consent was obtained by creatinga belie" that they were already married. In such a case

the consent could be said to result "rom amisconception o" "act. ut here the "act alleged is apromise to marry. 'e do not $now when. I" a "ullgrown girl consents to the act o" seual intercourse ona promise o" marriage and continues to indulge insuch acti!ity until she becomes pregnant it is an act o"promiscuity on her part and not an act induced bymisconception o" "act. 7ection *0 I5 cannot be calledin aid in such a case to pardon the act o" the girl and"asten criminal liability on the other, unless the 5ourt

can be assured that "rom the !ery inception theaccused ne!er really intended to marry her.4

!0. In D$$! S!5- @ D!! K#% :&. S%$ o6 B!-%,

AIR '00 SC '03# it has been observed ,

20. &he "actors set out in the "irst part o" 7ection *0are "rom the point o" !iew o" the !ictim. &he secondpart o" 7ection *0 enacts the corresponding pro!ision"rom the point o" !iew o" the accused. It en!isagesthat the accused too has $nowledge or has reason tobelie!e that the consent was gi!en by the !ictim inconse(uence o" "ear o" inury or misconception o" "act.&hus, the second part lays emphasis on the $nowledgeor reasonable belie" o" the person who obtains thetainted consent. &he re(uirements o" both the partsshould be cumulati!ely satis"ied. In other words, thecourt has to see whether the person gi!ing theconsent had gi!en it under "ear o" inury ormisconception o" "act and the court should also be

satis"ied that the person doing the act i.e. the alleged

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o""ender, is conscious o" the "act or should ha!ereason to thin$ that but "or the "ear or misconception,the consent would not ha!e been gi!en. &his is thescheme o" 7ection *0 which is couched in negati!eterminology.4

!1. The *upreme ourt again in D$$%? 4#%! :&. S%$

o6 H%>%%, C!!% A$% No.'3''/10 2$

'0..'013# held as under ,

5onsent may be epress or implied, coerced ormisguided, obtained willingly or through deceit.5onsent is an act o" reason, accompanied bydeliberation, the mind weighing, as in a balance, thegood and e!il on each side. &here is a clear distinctionbetween rape and consensual se and in a case li$ethis, the court must !ery care"ully eamine whetherthe accused had actually wanted to marry the !ictim,

or had mala "ide moti!es, and had made a "alsepromise to this e""ect only to satis"y his lust, as thelatter "alls within the ambit o" cheating or deception.&here is a distinction between the mere breach o" apromise, and not "ul"illing a "alse promise. &hus, thecourt must eamine whether there was made, at anearly stage a "alse promise o" marriage by theaccused8 and whether the consent in!ol!ed was gi!ena"ter wholly, understanding the nature andconse(uences o" seual indulgence. &here may be acase where the prosecutri agrees to ha!e seual

intercourse on account o" her lo!e and passion "or theaccused, and not solely on account o"misrepresentation made to her by the accused, orwhere an accused on account o" circumstances whichhe could not ha!e "oreseen, or which were beyond hiscontrol, was unable to marry her, despite ha!ing e!eryintention to do so. 7uch cases must be treateddi""erently. An accused can be con!icted "or rape onlyi" the court reaches a conclusion that the intention o"the accused was mala "ide, and that he hadclandestine moti!es.4

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!!. In the case at hand# the prosecutri$ in her complaint

dated 07.5.!011 to the police# on the basis of (hich I has been

registered# has no(here stated (hen did the accused e$tend

promise of marriage to her for the first time and (hen the% had

se$ual intercourse (ith each other for the first time. It is not clear

from the said complaint (hether ph%sical relations bet(een the

t(o started before the accused promised her to marr% or after

that. In her statement u/s.16: r.P 8$.P>:/" she has stated that

the% developed ph%sical relations for the first time in the %ear

!00. There is no mention of an% promise of marriage in that

statement. *he has simpl% mentioned that the accused gained her

trust and stated that the% (ill get married after the marriage of his

t(o sisters.

!3. In the e$amination in chief also# the prosecutri$ has

not mentioned (hen did the accused e$tend promise of marriage

to her for the first time and (hen did the% engage into ph%sical

relations for the first time. It is (hen she (as Fuestioned in this

regard in the cross e$amination that she stated that the accused

sho(ed interest in getting married to her at the time of their first

meeting itself on 1:.7.!006 and then in the month of "ugust# !006

he promised that he (ould marr% her but did not give an% specific

time frame for the same. In the cross e$amination# she stated that

the% had se$ual intercourse for the first time in the month of

ovember# !006. This is totall% contrar% to her statement u/s.16:

r.P 8$.P>:/" (here she had mentioned that the% had ph%sical

relations for the first time in the %ear !00. The first time (hen the

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accused committed se$ual intercourse (ith her has beendescribed b% the prosecutri$ in her e$amination in chief as under,

A"ter returning "rom Hyderabad, we continued to

meet each other and the accused started showing

physical interest in me. He started telling me to

engage into seual intercourse with him but I showed

my disinclination "or the same. I told him that weshould wait uptill our marriage. Howe!er, he pro!o$ed

me mentally to such an etent that I had to gi!e in.

He told me that he is going to be my husband and

there is nothing wrong i" I engaged into seual

intercourse with him. 9ltimately a"ter intense mental

and physical pro!ocation, I compellingly engaged into

seual intercourse with him many a times.4

!:. The aforesaid portion of the testimon% of the

prosecutri$ is patentl% 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 se$ual intercourse after intense mental and ph%sical

provocation. 8ven if the aforersaid portion of her testimon% is

ta@en on its face value# it does not sho( that the accused obtained

her consent to the se$ual intercourse solel% on the basis of

promise to marr%. " promise to marr% is totall% different from the

mental and ph%sical provocation# as mentioned b% the prosecution

in her testimon%. If a bo% engages a girl# (hom he loves# in

se$uall% e$plicit tal@s and during those tal@s touches her sensitive

bod% parts so that she becomes se$uall% active and consents to

SC No.109/13. Page 23 of 33


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se$ual intercourse# it can be said that the bo% provo@ed the girlmentall% and ph%sicall% to have ph%sical relations (ith him but it

cannot be said that he obtained her consent b% an%

misconception# fraud or an% other promise. ental and ph%sical

provocation is altogether different from a promise to marr% and

the t(o cannot be eFuated. There is no categorical statement of

the prosecutri$ in her e$amination in chief that she gave consent

for se$ual intercourse (ith the accused onl% on the basis of herpromise to marr% or on account of an% threat or pressure from the

side of the accused. It is evident that she did not offer an%

resistance and did not tr% to leave that place. I consider it not

proper for a girl to engage in se$ual intercourse (ith a bo% (ho

simpl% tells her that he is going to be her husband and there is

nothing (rong in engaging her into se$ual intercourse (ith him. It

(as for the girl in such circumstances to (eigh the pros and consof the intended act and to decide (hether or not she should

submit her a bod% to the bo%.

!5. It is important to note her that the prosecutri$# in none

of her statements mentions the place (here the accused held out

promise of his marriage to her for the first time or (here the% had

ph%sical relations (ith each other for the first time.

!6. The prosecutri$ had herself mentioned in each of her

statement that the accused did not give her an% specific time

frame of marriage. Therefore# the prosecutri$ (as having no

guarantee (hen the accused (ould marr% her and in these

circumstances# she should have been more circumspect before

giving her consent for se$ual intercourse.

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!7. The statement of the prosecutri$ in her cross

e$amination that she consented to have se$ual intercourse (ith

the accused onl% for the reason that she had become convinced

that she (ould marr% her does not appeal to an% reason in vie( of

(hat has been discussed herein above. I fail to understand ho(

the prosecutri$ had got convinced in ;ust t(o or three months

after her first meeting (ith the accused that he (ould definitel%marr% her. I m%self do not feel convinced and satisfied that the

prosecutri$ (as misled b% an% promise or utterance of the accused

and she gave her consent to the se$ual intercourse (ith him

because of the same. It appears that the prosecutri$ being a

mature# educated and emplo%ed lad%# understood the nature and

conseFuence of se$ual indulgence (ith the accused and agreed to

have se$ual intercourse (ith him onl% on account of her love andpassion for him and not solel% on account of an% alleged

misrepresentation.

!. oming to the printouts of 8?mails e$changed bet(een

the parties and their hats on the internet# filed b% the accused at

the time of his deposition as >1. These have been mar@ed as

ar@?" to ar@?*. These (ere not e$hibited at that time as this

court (as in doubt (hether these have been sufficientl% proved as

per the Indian 8vidence "ct. These include transcripts of internet

chats bet(een the prosecutri$ and the accused dated !7.11.!006#

07.1!.!006# 1:.5.!00# 0.6.!00 and !:..!010 from their

respective 8?mails I parureddiBgmail.com and

mrashish@umar:Bgamil.com. These also include transcripts of 8?

mails dated 16.1.!007# 15.6.!007# 30.11.!007# 0.1.!00#

SC No.109/13. Page 25 of 33


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17.!.!00# 11.!.!00 and 17.!.!00# sent b% prosecutri$ from heraforesaid 8?mail I to the accused on his aforesaid 8?mail I.

These also include transcripts of 8?mails dated 1!.!.!00 sent b%

the prosecutri$ from her another 8?mail I

parvathiBelitahomes.com to the accused and 8?mail dated

1!.7.!010 sent b% the prosecutri$ from her another 8?mail Id

saha;parvatiBgmail.com to the accused. o Fuestion has been put

to >1 in his cross e$amination regarding authenticit% andgenuineness of the aforesaid 8?mail as (ell as internet chats. It is

manifest that the prosecution does not dispute that the t(o 8?

mails Is referred to in these 8?mails and internet chats do not

belong to and (ere not operated b% the prosecutri$.

!. ormall%# in order to prove an electric record# the

reFuirements of section 65+ of the 8vidence "ct have to becomplied (ith but there is no bar in adducing secondar% evidence

in their proof under the provisions of sections 63 and 65 of the

8vidence "ct. It is a matter of common @no(ledge that 8?mails and

internet chats are stored in ver% huge servers of internet service

provider and those servers cannot be produced in the court.

Therefore (hen a (itness produces the printouts of the 8?mails

and internet chats in the court certif%ing that these have been

obtained truthfull% and correctl%# the printout documents

admissible as secondar% evidence in vie( of section 63 of the

8vidence "ct# unless these are disputed b% the other side. *ection

63 reads as under ,

6:. 7econdary e!idence. ; 7econdary e!idence

means and includes ;

SC No.109/13. Page 26 of 33


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/1 certi"ied copies gi!en under the pro!isionshereina"ter contained8

/21 copies made "rom the original by mechanical

processes which in themsel!es insure the accuracy o"

the copy, and copies compared with such copies8

/:1 copies made "rom or compared with the original8

/+1 counterparts o" documents as against the

parties who did not eecute them8/31 oral accounts o" the contents o" a document

gi!en by some person who has himsel" seen it.4

30. In this regard# I ma% profitabl% refer to follo(ing

passage from the ;udgment of the *upreme ourt reported as

'00 (11) SCC 800, S%$ :&. N%:;o S%2-#,

According to section 6:, secondary e!idence meansand includes, among other things, 5opies made "romthe original by mechanical process which inthemsel!es ensures the accuracy o" the copy, andcopies compared with such copies4. 7ection 63enables secondary e!idence o" the contents o" adocument to be adduced i" the original is o" suchnature as not to be easily mo!able. It is not in dispute

that the in"ormation contained in the call records isstored on huge ser!ers which cannot be easily mo!edand produced in the court. &hat is what the High 5ourthas also obser!ed at page 2


28/33

which is a pro!ision dealing with the admissibility o"electronic records, there is no bar to adducingsecondary e!idence under the other pro!isions o" the>!idence Act, namely, sections 6: and 63. It may bethat the certi"icate containing the details in subsection /+1 o" section 63 is not "iled in the instantcase, but that does not mean that the secondarye!idence cannot be gi!en e!en i" the law permits suche!idence to be gi!en in the circumstances mentionedin the rele!ant pro!isions, namely sections 6: and63.4

31. In the instant case# the 8?mails and internet chats

ar@?" to ar@?* produced b% the accused during the course of his

testimon% have not been disputed from the side of the

prosecution. >1 in his testimon% has certified their correctness

and accurac%. Therefore# I am of the opinion# those have been

proved as per la( and I hereb% mar@ them as 8$.G1 'coll%).

3!. The 8?mails and internet chats bet(een the

prosecutri$ and the accused tell a totall% different stor%. It is

manifest from these that in fact# it (as the prosecutri$# (ho (as

insisting upon the accused to have se$ual intercourse (ith her and

the accused (as not inclined to the same. It is also apparent from

these 8?mails and chats that the prosecutri$ (as not sure (hether

or not the accused (ould marr% her and still she (as pestering

him for ph%sical relations. The contents of these 8?mails and

internet chats totall% contradict the version of the prosecutri$ and

destro% the prosecution case in totalit%. In fact# these advance the

defence ta@en b% the accused that he did not engage into se$ual

intercourse (ith the prosecutri$ at an% point of time and had

never promised to marr% her and he as (ell as the prosecutri$

(ere merel% friends. These 8?mails and internet chats corroborate

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the testimon% of >1# (hich has been alread% noticed herein?above.

33. There is not even a slightest indication in the aforesaid

8?mails and internet chats bet(een the accused and the

prosecutri$ that the accused had held out an% promise of marriage

to her and she consented to se$ual intercourse (ith the accused

onl% for that promise and in fact# se$ual intercourse had ta@enplace bet(een the t(o. It is another thing that the prosecutric had

the impression that the accused also loves and intends to marr%

her. The conduct of the accused ma% have given rise to such

impression in the mind of the prosecutri$ but that alone is not

sufficient to hold that the consent of the prosecutri$ for

intercourse (ith the accused (as not voluntar%. There is nothing

in these 8?mails or internet chats to demonstrate that the accusedhad assured her on an% point of time that he (ould marr% her. If#

in fact# the prosecutri$ had consented to se$ual intercourse (ith

the accused onl% on later&s promise of marriage# she (ould have

said so in these 8?mails. *he has not mentioned even a (ord in

these 8?mails or in internet chats about an% promise of marriage

held out to her b% the accused.

3:. o( 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

prosecutri$ and the prosecutri$ indulged in intercourse (ith the

accused on such promise# I (onder ho( the intercourse bet(een

the t(o in such circumstances (ould amount to rape.

35. In m% opinion# ever% act se$ual intercourse bet(een

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t(o adults on the assurance of promise of marriage does notbecome rape# if the assurance or promise is not fulfilled later on b%

the bo%. >hen a gro(n up# educated and office going (oman

sub;ects herself to se$ual intercourse (ith a friend or colleague on

the latterJs promise that he (ould marr% her# she does so at her

o(n peril. *he must be ta@en to understand the conseFuences of

her act and must @no( that there is no guarantee that the bo%

(ould fulfill his promise. 2e ma% or ma% not do so. *he mustunderstand that she is engaging in an act (hich not onl% is

immoral but also against the tenets of ever% religion. o religion in

the (orld allo(s pre?marital se$.

36. The alcutta 2igh ourt in the case of J%>%! R%!

P%2% V&. S%$ o6 W$& B$5% A., 19* C!.L.J. 13

observed that in order to come (ithin the meaning ofmisconception of fact# the fact must have an immediate relevance.

It (as also observed that if a full% gro(n up girl consents to the

act of se$ual intercourse on a promise of marriage and continues

to indulge in such activit% until she becomes pregnant it is an act

of promiscuit% on her part and not an act induced b%

misconception of fact and it (as held that *ection 0 IP can not

be invo@ed unless the court can be assured that from the inception

accused never intended to marr% her.

37. 2o(ever it can not be said that in no case# having

se$ual intercourse (ith a girl on the basis of a promise to marr%

(ould amount to commission of rape. 8ver% such case has to

e$amined on its individual facts and attending circumstances. The

*upreme ourt in $% 4!!:%&% Ro% V&. S%$ o6 A.P.,

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'008(3) JCC 18'3held that if it is sho(n that since the ver%inception of ma@ing the promise# the accused did not intend to

marr% her and the prosecutri$ e$tends her consent to have se$ual

intercourse (ith him# onl% on the strength of such

misrepresentation made to her# and thereb% forms a

misconception of fact that the accused (as definitel% going to

marr% her# it (ould amount to commission of rape.

3. In U2%> V&. S%$ o6 K%%%?% (%)before the

*upreme ourt# a friendship had developed bet(een the

prosecutri$ and the appellant. >hen the appellant proposed to

marr% her# the prosecutri$ told him that since the% belonged to

different castes# their marriage is not possible. In these

circumstances the *upreme ourt (as of the vie( that the

consent given b% the prosecutri$ to se$ual intercourse (ith aperson (ith (hom she (as deepl% 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 (hether consent

given b% the prosecutri$ (as voluntar% or under a misconception

of fact# no straight ;ac@et formula can be laid do(n but follo(ing

factors stand out,?

1. >here a girl (as of 1 %ears of age and had sufficient

intelligence to understand the significance and moral

Fualit% of the act she (as consenting to

!. *he (as conscious of the fact that her marriage (as

difficult on account of caste considerations.

3. It (as difficult to impute to the appellant @no(ledge the

prosecutri$ had consented in conseFuence of a

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misconception of fact arising from his promise and:. There (as no evidence to prove conclusivel% that the

appellant never intended to marr% the prosecutri$.

3. In the instant case also# the prosecutri$ (as !0 %ears

old in the %ear !006 (hen she started friendship (ith the accused

and hence a mature girl. *he (as (ell educated and doing a ;ob ofsecretarial and administrative nature (ith a reputed compan% of

+anglore. *he (as an independent lad% and had been residing on

rent alone in +anglore since the %ear !003. 2ence# I consider that

she (as intelligent enough to understand moral Fualit% and

conseFuences of her act and there (ere no chances of their being

misled b% an% assurance given to her b% the accused. There is no

evidence on record to sho( that she consented to se$ualintercourse (ith the accused onl% on the later&s promise of

marriage and other(ise# she (ould not have given her consent for

the same. In fact# there is evidence on record in the form of 8?

mails and internet chats bet(een the t(o '8$.G1) that prosecutri$

had been pestering and inducing the accused to have se$ual

intercourse (ith her.

:0. In vie( of the aforesaid discussion# I feel that the

prosecution has failed to prove that se$ual intercourse had ta@en

place bet(een the prosecutri$ and the accused and the consent of

the prosecutri$ to the same (as obtained b% the accused b% an%

misconception of fact. Thus the prosecution has failed to prove the

charges against the accused.

SC No.109/13. Page 32 of 33


33/33

:1. Therefore# the accused is liable to be acFuitted and ishereb% acFuitted.

Ao#

Download - State v Ashish Kumar - ASJ Virender Bhat - Dwarka Courts - New Delhi - Premarital Sex

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