IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL FAST TRACK COURT), DWARKA COURTS, NEW DELHI. SC No.

109/13. U !"#$ C%&$ ID No. 0'(0)R0'*+)3'011. S,%,$ V&. A&-!&- K#.%/, S/o S-. B%01! 2$/ P%0, R/o A3)', K!/% 4%/2$ , U,,%. N%5%/, N$1 D$0-!. D%,$ o6 I &,!,#,!o 7 '9.*.'011.

FIR No.13) 2%,$2 '1.).'011. U/&. 3+8/)08 IPC. P.S. B! 2%9#/. D%,$ o6 /$&$/:! 5 ;#25.$ ,/O/2$/ 7 0).1'.'013. D%,$ o6 9/o o# <$.$ , 7 '0.1'.'013. JUD4=ENT 1. The prosecution has chargesheeted the above named

accused for the offences punishable u/s.376/506 IP . !. "s per the case of the prosecution# the prosecutri$

namel% &P& 'real name (ithheld in order to conceal her identit%) has submitted a (ritten complaint in P.*. +indapur on 07.5.!011# the gist of (hich is as under , I am in relationship with a boy named Ashish Kumar since July, 2006. His parents were aware about our relationship and he had promised to get married to

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me. He committed se ual intercourse with me se!eral times 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 got my 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 $now that he is getting married with someone else, I rushed to his house in )elhi on 0*.+.20,,. I stayed in his house "or 2, days and he had se ual relations with me at his house se!eral times during that period. He had ta$en la$hs o" rupees "rom me "or our marriage. -n 2*.+.20,,, he and his parents too$ me to .athan$ot /.un0ab1 to solemni%e my marriage with him but there all the "amily members abused, harassed and insulted me. &hey told me that since my parents are not ali!e, there is nobody to support me and to "ight "or me. &herea"ter, he too$ 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"". 2rom

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Amritsar, I returned to )elhi alone by train on 0,.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 and investigation

prosecutri$# .I/ (as registered u/s.376/506 IP prosecutri$ u/s.161 r.P

(as handed over to *I 0omnica. *he recorded statement of the and got her medicall% e$amined in 001 5o.6671/11. 8$hibits handed over regarding the abortion. -n 2ospital on !1.5.!011 vide 34 her possession an%

b% the doctor (ere sei9ed b% her. Prosecutri$ (as not having in document !3.5.!011 she (as produced before the 4d. 3agistrate# (ho recorded her statement u/s.16: r.P . I- collected the school certificate of the prosecutri$ regarding her age (hich reveals her date of birth to be !7.3.1676. "ccused came to be arrested on 06.6.!011. 2e (as got medicall% e$amined in 001 2ospital and the e$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. 3agistrate. :. 1pon committal of the case to the court of *essions# (as framed against the accused on

harge u/s.376/506 IP

!!.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 in evidence 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 0>1 in his

defence. 0uring 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 3ar@?" to 3ar@?*. The accused also e$amined his (ife as 0>!. 0>3 is the *enior 8$ecutive of =ahoo India Pvt. 4td.# (ho deposed that 8?mail Id Aashish@umar7:B%ahoo.comC (as generated b% 3r. "shish Dumar on 15.6.!00: and he had provided his alternate 8? mail address as Amrashish@umar7: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 1* 0omain and not in Indian 0omain. 2e proved his affidavit in this regard as 8$.0>3/+. 0>: is the 3anager '"dministration and 2/)# 3./s. Deppel 4and International 4imited# +angluru# (ho deposed that 8?mail Id AparvatiBelitahomes.comC (as allotted b% their compan% to 3s. 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%. 0>5 is "ssociate 3anager .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 the compan%. 2e proved his detailed affidavit in this regard as 8$.0>5/". 7. I have heard 4d. "PP# 4d. ounsel for the accused and

have perused the entire record. 7. 4d. "PP vehementl% argued that accused has deceived

the 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$ual intercourse b% deceit and fraud and hence he has committed the offence of rape. *he further submitted that the printouts of 8?mails and chats 3ar@?" to 3ar@?* produced b% the accused during his testimon% cannot be loo@ed into as those are not accompanied b% certificate u/s.65+ of Indian 8vidence "ct and for the reason that those have not been put to the prosecutri$ 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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6.

-n the other hand# 4d.

ounsel for the accused

vehementl% 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$ual intercourse (ith her. 2e further submitted that the 8?mails and chats bet(een the accused and the prosecutri$ 3ar@?" to 3ar@?* 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>7. *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/3a%# !006 and ultimatel% both became 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 3/s. Infos%s and (as posted at 3%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$pressed his interest in solemni9ing the marriage (ith her. 2e promised her that he (ould marr% her after the marriage of his t(o elder sisters# one of (hom (as divorcee. 2e e$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 5ovember# !006 she along(ith accused (ent to her native place in 2%derabad to meet her parents. "ccused convinced her that he (ould persuade his 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%# !007 and later on had to abort the same at the instance of the accused. *he further deposed that in .ebruar%# !006 accused got transferred to Pune office of Infos%s. *he (ent to meet him in Pune in "ugust# !006# sta%ed (ith him for three

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da%s and thereafter accused committed intercourse (ith her. *he again (ent to Pune in 5ovember# !006 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$ed for 3a%# !010 and the% should (ait till that time. *he had also helped the accused financiall% b% transferring a huge amount to his ban@ account. *he further deposed that in Gune# !010 the accused moved to 0elhi and told her that since both of his sisters have been married# it is turn for their marriage. *he came to 0elhi on 07.7.!010 and sta%ed in the house of the accused for t(o da%s. 2e introduced her to his parents and also had intercourse (ith her. "ccused promised and assured her in front of her parents that he is going to marr% her. In 5ovember#!010 she again visited the house of accused in 0elhi to fi$ the date of marriage but this time his parents told her that accused is 3angli@ 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 0elhi# 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 0elhi on 06.:.!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 06.:.!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. 0uring this period of !1 da%s also accused @ept on assuring that he is going to marr% her. 0uring that period also# the% had se$ual intercourse (ith each other. -n 16.:.!011 accused too@ her to 0(ar@a ourt and introduced her to a la(%er namel% 0eepa@ *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 !6.:.!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%(ell near 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 (ho sta%s at +anglore but he also feigned ignorance about the accused. *he sta%ed at "mritsar for the night and ne$t da% came to 0elhi. *he directl% (ent to the house of the accused but it (as loc@ed and the neighbours did not @no( an%thing about the accused and his famil% members. *he sta%ed at 0elhi for some da%s and tried to contact the accused but did not succeed. 1ltimatel%# she visited P.*. +indapur and submitted a (ritten complaint# on the basis of (hich .I/ (as registered. *he (as produced before a 3agistrate# (ho recorded her statement u/s. 16: r.P 8$.P>:/". "ccording to her# accused (as arrested from his house in her presence on 06.6.!011 vide arrest memo 8$.P>!/". 11. In her cross e$amination# prosecutri$ 'P>7) deposed

that she had been doing ;ob (ith 3/s. Deppel 4and international 4imited# +anglore# since the %ear !005 and her ;ob (as of secretarial and administrative nature. *he ;oined 1+ 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 5ovember# !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# !007 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 5ovember# !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$ual intercourse (ith him# she meant that he convinced her as (ell as her famil% members that he (ould marr% her in an% event and there is nothing (rong in having se$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 0r. *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# !006# 5ovember# !006 and

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"pril# !010. The accused did not come to +anglore from Pune to meet 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% and had 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 0elhi 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 the accused. *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 0>1. 2e disclosed his aged as !6 %ears and deposed that he ;oined Infos%s in 3a%# !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%# !006. 2e deposed that initiall% he (as chatting (ith the prosecutri$ at her 8?mail I0 0i%aEspiritB%ahoo.com. *he has sent her

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photographs through 8?mails on 05.7.!006 and 10.7.!006 but he did 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 0elhi. *he told him that she is in a depressed state of mind as a person named 1mesh (ith (hom she (as in a relationship had got married. Thereafter# she @ept on calling him regularl% 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 her friend /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.!006 she told him that she is going to marr% a bo% named Ii@ram in Trichi in Tamilnadu. Thereafter# Ii@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%# !006 (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 temptations and 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 0ecember# !006 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. I I I +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 !3.6.!010 '8$.0>1/ )# he (as informed that this amount has been transferred from ban@ account no.011600!3!:!. >hen he made inFuiries from the prosecutri$ about her account number# she started alleging that he made her to abort her pregnanc% in the %ears !006 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 0elhi on 06.:.!011. *he told the accused that she had come in search of a ;ob and is sta%ing at Dhanpur. 2er advocate *h. 0eepa@ *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 the prosecutri$ 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 informed her 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$. The% got convinced and ultimatel%# their marriage too@ place on !:.5.!011. 2e also deposed that the prosecutri$ has filed a false complaint against him (ith the intention that he (ould not be able to marr% at 0elhi 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 3ar@?" to 3ar@?*. 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 the prosecutri$ that he along(ith his t(o friends visited her house in her native place. 2e denied that 8?mails 3ar@?. and 3ar@?* are fabricated and manipulated. 2e also denied that the prosecutri$ had become pregnant from his loin in Gul%# !007 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.!.!006 he had not apprised the prosecutri$ about his Pune address. 2e admitted that the prosecutri$ had come to Pune in "ugust# !006 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 5ovember# !006 but denied that she had sta%ed (ith him at Pune. "ccording to him# the% met at *aha; =oga temple and other public places. 2e also denied that the prosecutri$ visited his house in 0elhi on 07.7.!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 5ovember# !010 and then on 06.:.!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. 3agistrate in 0(ar@a ourt# 5e( 0elhi# 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% Ii@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 and again (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 0elhi 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. 1ndoubtedl%# 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 sole testimon%. *he is undoubtedl% a competent (itness u/s.117 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$# it ma% loo@ for some other evidence on record# (hich ma% lend assurance to her testimon%# short of corroboration reFuired in case of accomplice. If the court finds it difficult to accept the version of the prosecutri$ 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$plain (h% and ho( the victim and other (itnesses have falsel% implicated the accused. The prosecution case has to stand on its o(n legs and cannot ta@e the support from the (ea@ness of the case of defence. 2o(ever# the great suspicion against the accused and ho(ever strong the moral belief and conviction of the court# unless the offence of the accused is established be%ond reasonable doubt on the basis of legall% admissible evidence and the material on record# the conviction cannot be ordered. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused b% reliable evidence. The accused is entitled to benefit of ever% reasonable doubt. 17. accused In the instant case# the prosecution alleges that the obtained consent of the prosecution for se$ual

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intercourse on the basis of false promise of marriage and therefore the consent of the prosecution cannot be termed as free or fair# the same being a tainted one and hence the accused has committed offence of rape. 17. The *upreme ourt considered this issue at length in

case of U2%> :&. S,%,$ o6 K%/ %,%?%, '003 (1) JCC )08, AIR '003 SC 1839 and held as under ,

It there"ore appears that the consensus o" 0udicial opinion is in "a!our o" the !iew that the consent gi!en by the prosecutri to se ual intercourse with a person with whom she is deeply in lo!e on a promise that he would marry her on a later date, cannot be said to be gi!en under a misconception o" "act. A "alse promise is not a "act within the meaning o" the 5ode. 'e are inclined to agree with this !iew, but we must add that there is no strait 0ac$et "ormula "or determining whether consent gi!en by the prosecutri to se ual intercourse is !oluntary, or whether it is gi!en under a misconception o" "act. In the ultimate analysis, the tests laid down by the 5ourts pro!ide at best guidance to the 0udicial mind while considering a (uestion o" consent, but the 5ourt must, in each case, consider the e!idence be"ore it and the surrounding circumstances, be"ore reaching a conclusion, because each case has its own peculiar "acts which may ha!e a bearing 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!e each and e!ery ingredient o" the o""ence, absence o" consent being one o" them.4 16. *imilarl%# in P/%2$$9 K#.%/ @ P/%2$$9 K#.%/

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

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*upreme ourt observed as under , &he "ailure to $eep the promise at a "uture uncertain date due to reasons not !ery clear on the e!idence does not always amount to a misconception o" "act at the inception o" the act itsel". In order to come within the meaning o" misconception o" "act, the "act must ha!e an immediate rele!ance. &he matter would ha!e been di""erent i" the consent was obtained by creating a belie" that they were already married. In such a case the consent could be said to result "rom a misconception o" "act. 6ut here the "act alleged is a promise to marry. 'e do not $now when. I" a "ull grown girl consents to the act o" se ual intercourse on a promise o" marriage and continues to indulge in such acti!ity until she becomes pregnant it is an act o" promiscuity on her part and not an act induced by misconception o" "act. 7ection *0 I.5 cannot be called in 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 the accused ne!er really intended to marry her.4 !0. In D$$0!9 S! 5- @ D!0!9 K#.%/ :&. S,%,$ o6 B!-%/,

AIR '00) SC '03# it has been observed , 20. &he "actors set out in the "irst part o" 7ection *0 are "rom the point o" !iew o" the !ictim. &he second part o" 7ection *0 enacts the corresponding pro!ision "rom the point o" !iew o" the accused. It en!isages that the accused too has $nowledge or has reason to belie!e that the consent was gi!en by the !ictim in conse(uence o" "ear o" in0ury or misconception o" "act. &hus, the second part lays emphasis on the $nowledge or reasonable belie" o" the person who obtains the tainted consent. &he re(uirements o" both the parts should be cumulati!ely satis"ied. In other words, the court has to see whether the person gi!ing the consent had gi!en it under "ear o" in0ury or misconception 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!e reason to thin$ that but "or the "ear or misconception, the consent would not ha!e been gi!en. &his is the scheme o" 7ection *0 which is couched in negati!e terminology.4 !1. o6 The *upreme ourt again in D$$9%? 4#0%,! :&. S,%,$ H%/>% %, C/!.! %0 A99$%0 No.'3''/10 2$<!2$2 o

'0.).'013# held as under , 5onsent may be e press or implied, coerced or misguided, obtained willingly or through deceit. 5onsent is an act o" reason, accompanied by deliberation, the mind weighing, as in a balance, the good and e!il on each side. &here is a clear distinction between rape and consensual se and in a case li$e this, the court must !ery care"ully e amine whether the accused had actually wanted to marry the !ictim, or had mala "ide moti!es, and had made a "alse promise to this e""ect only to satis"y his lust, as the latter "alls within the ambit o" cheating or deception. &here is a distinction between the mere breach o" a promise, and not "ul"illing a "alse promise. &hus, the court must e amine whether there was made, at an early stage a "alse promise o" marriage by the accused8 and whether the consent in!ol!ed was gi!en a"ter wholly, understanding the nature and conse(uences o" se ual indulgence. &here may be a case where the prosecutri agrees to ha!e se ual intercourse on account o" her lo!e and passion "or the accused, and not solely on account o" misrepresentation made to her by the accused, or where an accused on account o" circumstances which he could not ha!e "oreseen, or which were beyond his control, was unable to marry her, despite ha!ing e!ery intention to do so. 7uch cases must be treated di""erently. An accused can be con!icted "or rape only i" the court reaches a conclusion that the intention o" the accused was mala "ide, and that he had clandestine 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$.P>:/" she has stated that the% developed ph%sical relations for the first time in the %ear !007. There is no mention of an% promise of marriage in that statement. *he has simpl% mentioned that the accused gained her trust and stated that the% (ill get married after the marriage of his t(o sisters. !3. In the e$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 5ovember# !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 !007. The first time (hen the

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accused

committed

se$ual

intercourse

(ith

her

has

been

described b% the prosecutri$ in her e$amination in chief as under, A"ter returning "rom Hyderabad, we continued to meet each other and the accused started showing physical interest in me. He started telling me to engage into se ual intercourse with him but I showed my disinclination "or the same. I told him that we should wait uptill our marriage. Howe!er, he pro!o$ed me mentally to such an e tent 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 se ual intercourse with him. 9ltimately a"ter intense mental and physical pro!ocation, I compellingly engaged into se ual 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

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se$ual intercourse# it can be said that the bo% provo@ed the girl mentall% and ph%sicall% to have ph%sical relations (ith him but it cannot be said that he obtained her consent b% an% misconception# fraud or an% other promise. 3ental and ph%sical provocation is altogether different from a promise to marr% and the t(o cannot be eFuated. There is no categorical statement of the prosecutri$ in her e$amination in chief that she gave consent for se$ual intercourse (ith the accused onl% on the basis of her promise 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 cons of 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 and passion for him and not solel% on account of an% alleged misrepresentation. !7. oming to the printouts of 8?mails e$changed bet(een hats on the internet# filed b% the accused at

the parties and their

the time of his deposition as 0>1. These have been mar@ed as 3ar@?" to 3ar@?*. 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.!007# 06.6.!007 and !:.6.!010 from their respective mails dated 8?mails 16.1.!007# I0 parureddiBgmail.com 30.11.!007# and mrashish@umar7:Bgamil.com. These also include transcripts of 8? 15.6.!007# 06.1.!006#

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17.!.!006# 11.!.!006 and 17.!.!006# sent b% prosecutri$ from her aforesaid 8?mail I0 to the accused on his aforesaid 8?mail I0. These also include transcripts of 8?mails dated 1!.!.!006 sent b% the prosecutri$ from her another 8?mail I0 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. 5o Fuestion has been put to 0>1 in his cross e$amination regarding authenticit% and genuineness of the aforesaid 8?mail as (ell as internet chats. It is manifest that the prosecution does not dispute that the t(o 8? mails I0s referred to in these 8?mails and internet chats do not belong to and (ere not operated b% the prosecutri$. !6. 5ormall%# in order to prove an electric record# the

reFuirements of section 65+ of the 8vidence "ct have to be complied (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 ;

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/,1 /21

certi"ied copies gi!en under the pro!isions copies made "rom the original by mechanical

hereina"ter contained8 processes which in themsel!es insure the accuracy o" the copy, and copies compared with such copies8 /:1 /+1 /31 copies made "rom or compared with the original8 counterparts o" documents as against the

parties who did not e ecute them8 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 ourt reported as

passage from the ;udgment of the *upreme

'00) (11) SCC 800, S,%,$ :&. N%:;o, S% 2-# , According to section 6:, secondary e!idence means and includes, among other things, 5opies made "rom the original by mechanical process which in themsel!es ensures the accuracy o" the copy, and copies compared with such copies4. 7ection 63 enables secondary e!idence o" the contents o" a document to be adduced i" the original is o" such nature as not to be easily mo!able. It is not in dispute that the in"ormation contained in the call records is stored on huge ser!ers which cannot be easily mo!ed and produced in the court. &hat is what the High 5ourt has also obser!ed at page 2<6. Hence printouts ta$en "rom the computers=ser!ers by mechanical process and certi"ied by a responsible o""icer o" the ser!ice pro!iding company can be led in e!idence through a witness who can identi"y the signature o" the certi"ying o""icer or otherwise spea$ o" the "acts based on his personal $nowledge. Irrespecti!e o" the compliance with the re(uirements o" section 636,

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which is a pro!ision dealing with the admissibility o" electronic records, there is no bar to adducing secondary e!idence under the other pro!isions o" the >!idence Act, namely, sections 6: and 63. It may be that the certi"icate containing the details in sub section /+1 o" section 636 is not "iled in the instant case, but that does not mean that the secondary e!idence cannot be gi!en e!en i" the law permits such e!idence to be gi!en in the circumstances mentioned in the rele!ant pro!isions, namely sections 6: and 63.4 31. testimon% In the instant case# the 8?mails and internet chats have not been disputed from the side of the

3ar@?" to 3ar@?* produced b% the accused during the course of his prosecution. 0>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 0>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@en place 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 accused had 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:. 5o( 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 not become 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$ual intercourse (ith a friend or colleague on the latterJs promise that he (ould marr% her# she does so at her o(n peril. *he must be ta@en to understand the conseFuences of her act and must @no( that there is no guarantee that the bo% (ould fulfill his promise. 2e ma% or ma% not do so. *he must understand that she is engaging in an act (hich not onl% is immoral but also against the tenets of ever% religion. 5o religion in the (orld allo(s pre?marital se$. 36. observed The that alcutta 2igh in order to ourt in the case of J%>% ,! R% ! come (ithin the meaning of

P% 2% V&. S,%,$ o6 W$&, B$ 5%0 A A /., 19*( C/!.L.J. 1)3) misconception 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 60 IP accused never intended to marr% her. 37. 2o(ever it can not be said that in no case# having can not

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

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 B$00% 4/! !:%&% Ro% V&. S,%,$ o6 A.P.,

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'008(3) JCC 18'3 held 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# made onl% to on her# the and strength thereb% of such a misrepresentation forms

misconception of fact that the accused (as definitel% going to marr% her# it (ould amount to commission of rape. 37. *upreme In U2%> V&. S,%,$ o6 K%/ %,%?% (&#9/%) before the 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$ual intercourse (ith a person (ith (hom she (as deepl% in love on a promise of marriage# can not be said to be given under a misconception of fact. The court further held that for determining (hether consent given b% the prosecutri$ (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 16 %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$.

36.

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 of secretarial 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$ual intercourse (ith the accused onl% on the later&s promise of marriage and other(ise# she (ould not have given her consent for the same. In fact# there is evidence on record in the form of 8? mails and internet chats bet(een the t(o '8$.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.

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:1.

Therefore# the accused is liable to be acFuitted and is

hereb% acFuitted.

A o# <$2 ! o9$ Co#/, o '0.1'.'013.

(VIRENDER BHAT) A220. S$&&!o & J#25$ (S9$<!%0 F%&, T/%<? Co#/,) D1%/?% Co#/,&, N$1 D$0-!.

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