Consensual sex is not rape. State vs . Mahesh Chand And Anr on 29 March, 2017

Sir Ji ! I had #sex with this man since 2009. Till 2013 I had #sex on #several occasions. Then I went away with him on my own #free #will and got #married under Arya Samaj marriage in 2013, (as per my own #statement to police) … But Now I want to file Rape case on him !!

 

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IN THE COURT OF PRAVEEN KUMAR, ADDL. SESSIONS
JUDGE (SFTC), DWARKA COURTS, NEW DELHI.

SC No.441556/2016

State vs. Mahesh Chand and anr

FIR No. 249/2016

U/s. 493/495/376/377/506/34 IPC

P.S. Palam Village

29.03.2017

ORDER ON CHARGE (Oral) :

  1. The case of the prosecution, in brief, is that on 01.01.2009 prosecutrix ‘X’ (real name withheld in order to conceal her identity) met accused Mahesh Chand through her friend. They became friends and started meeting each other. One day in March 2009 when the prosecutrix was all alone in her house, accused came there and committed rape upon her on the pretext of marriage. He also filmed a video of the said act and, thereafter, started threatening her that he would make the said obscene video public. On the pretext of marriage, accused used to have physical relations with her. On 10.06.2013 the accused married her at Arya Samaj Mandir, Dwarka, New Delhi (address withheld). On 21.06.2013 both the accused took her to Manesar, Gurgaon where the prosecutrix was kept in illegal confinement for nine days and was raped by accused Mahesh State v. Mahesh Chand anr. Page 1 of 8 (FIR No.249/2016 PS Palam Village) Chand. During the said period co­accused Sanjay also attempted to rape her. It is further the case of the prosecution that on 29.06.2013 they were apprehended by the police as a missing complaint was lodged by her family.
  2. On the complaint of the prosecutrix, the present FIR was registered on 15.06.2016 for commission of offences punishable u/ss 498A/494/495/376/377/506 IPC.

  3. During investigation prosecutrix was medically examined at DDU Hospital, Hari Nagar, New Delhi on 16.06.2016. Her statement u/s 164 Cr.PC was recorded by Ld. MM, Dwarka Courts, New Delhi on 17.06.2016. The statements of witnesses conversant with the facts were recorded. After completion of investigation, a charge­sheet was filed against the accused Mahesh Chand for commission of offences under Sections 493/495/376/377/506 IPC and against accused Sanjay for commission of offences under Sections 376/377/506/34 IPC.

  4. I have heard Ms. Satwinder Kaur, Ld. APP for the State and Sh. Ajay Raghav, Ld. Legal Aid Counsel for the accused.

  5. Ld. Counsel for the accused has contended that accused have been falsely implicated in this case. There is delay in lodging the FIR. According to him, if a grown up girl has consented to sexual intercourse State v. Mahesh Chand anr. Page 2 of 8 (FIR No.249/2016 PS Palam Village) with a person who held out false promise to marry her, it would not amount to consenting under any misconception of fact u/s 90 IPC and, as such, no offence of rape can be said to have been committed. It is contended that no prima facie case for the alleged offences is made out against the accused and they are liable to be discharged.

  6. On the other hand, Ld. APP for the State has contended that there is sufficient material on record for framing charges against the accused.

  7. I have gone through the case file. The FIR in criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. It is well settled proposition of law that a mere delay itself cannot be a ground to disbelieve the entire case of the prosecution. The effect of delay is to be understood in the light of the plausibility of the explanation forthcoming and must depend for consideration on all the facts and circumstances of a given case. Though not referred to or relied upon, in case of Dilawar v. State of Delhi, 2007 Cri.LJ 4709, it has been held by the Apex Court that in criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation State v. Mahesh Chand anr. Page 3 of 8 (FIR No.249/2016 PS Palam Village) upon the complaint and to make embellishment or even make fabrications.

  8. The delay of one or two days in lodging the FIR may be bonafide, reasonable and justified in the facts and circumstances of a given case. However, in the present case there is inordinate delay in lodging the FIR.

  9. In her complaint on which present FIR was lodged it is alleged that in March 2009 accused Mahesh Chand committed rape upon the prosecutrix on the pretext of marriage. No specific dates and time have been mentioned by the prosecutrix in the said complaint from March 2009 till 21.06.2013 when the accused Mahesh Chand committed rape upon her. This relationship continued for sufficient duration and at no stage she raised alarm/hue and cry or lodged report with the police against alleged rape. Even after the initial incident in March 2009 she continued to have sexual relations with him on several occasions without demur and at no stage prosecutrix lodged report about his conduct and behaviour. The family members of the prosecutrix had lodged a missing report regarding her on 21.06.2013. At that time prosecutrix made a statement to the SHO PS Palam Village stating therein that she went with accused Mahesh of her own free will. Accused Mahesh married the prosecutrix on 10.06.2013 according to Hindu rites and ceremonies at Arya Samaj Mandir, Delhi (address withheld). As per statement under section 164 Cr. P.C., prosecutrix came to know that accused Mahesh Chand was already married when she stayed with him at Manesar, Gurgaon. However, she kept mum and she did not lodge any complaint against him. Rather she stated to police that she went with him of her own free will. Prosecutrix concealed the factum of her marriage with accused Mahesh Chand on 10.06.2013 from her parents/relatives and did not make it public. She was the mature enough to fully understand as to what was happening between the two. In the facts and circumstances of this case, it was an act of promiscuity on the part of the prosecutrix and not an act induced by misconception of fact. Though not referred to or relied upon, in similar circumstances, in judgment – Gaurav Maggo Crl. A. No.369/2014, decided by High Court of Delhi on 29.5.2015, it has been held as under : “There is nothing in her evidence to demonstrate that she was incapable of understanding the nature and implications of the act which she consented to. Her consent for physical relations (if any) was an act of conscious reason. If a fully grown up lady consents to the act of sexual intercourse on a promise to marry and continues to indulge in such activity for long, it is an act of promiscuity on her part and not an act induced by misconception of fact.”

  10. Prosecutrix was medically examined on 16.06.2016. Doctor has written on the MLC that she did not find any external injury mark on the person of the prosecutrix at the time of the examination. There is no medical evidence to support the version of the prosecutrix that she was raped as she was taken to the hospital after considerable delay. Accused Mahesh Chand was also medically examined by doctor on 30.09.2016 at DDU Hospital, New Delhi which was a sheer formality.

  11. It is the settled law that order framing the charges does substantially affect the persons and the Court must not automatically frame the charge merely because the prosecution authorities, by relying on the documents referred to in Section 173 Cr.PC, consider it proper to institute the case.

  12. Though not referred to or relied upon, it has been observed by Madhya Pradesh High Court in judgment – Sunder Singh v. State of M.P., Cr.R No.607/2013 decided on 3.9.2013 as under : “42. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself have placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken favouring the accused, the court shall not put the accused to harassment by asking him to face a trial. Please see: State of Maharashtra v. Som Nath (1996) 4 SCC 659. In the case at hand, if the Court allowed to asking applicant face the trial on above discussed evidence, definitely it will amount to put the applicant for harassment.”

  13. Though not referred to or relied upon, in judgment­ Jayanti Rani Panda v. State of W.B., 1984 Crl. Law Journal 1535 it has been held that if a grown up girl has consented to sexual intercourse with a person who held out false promise to marry her it would not amount to consenting under any misconception of fact under Section 90 IPC and sexual intercourse by the man under these circumstance would not be an offence of rape as defined in Section 375 IPC. Though not referred to or relied upon, in similar circumstances, in judgment ­ State v. Anupam Bhardwaj, Criminal Revision P. No. 4/2017, decided on 3.1.2017, our High Court of Delhi speaking through Hon’ble Mr. Justice Vipin Sanghi has upheld the order of the trial court discharging the accused in a rape case.

  14. Considering the facts and circumstances of this case, after sifting and weighing the evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused, I am of the opinion that the materials placed before the Court do not disclose the grave suspicion against the accused Mahesh Chand and Sanjay for framing charge against them for committing offences punishable under Sections 376 and 376/511 IPC respectively. Accordingly, they are discharged for the said offences. All other offences are triable by the court of Ld. M.M. Accused are directed to appear before Ld. M.M. today at 12.30 pm. Ld. M.M. shall proceed further in the matter in accordance with law.

Announced today in open court on 29.3.2017.
(PRAVEEN KUMAR)
Addl. Sessions Judge (SFTC) Dwarka Courts, New Delhi.

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