Category Archives: He did NOT rape me

Girl who had #Sex & #Lived for 4 years with a #married man of same village, cannot cry #rape later !!

MP HC

Whether girl maintaining sexual relation with married person can claim that she was raped on promise of marriage?

Thus, from the statement of the prosecutrix and her parents it is found that the prosecutrix and accused were in love and having relationship for the last four years. During this period the prosecutrix had physical relations with the accused. She lived with the accused in his house openly for long time.

9. Prosecutrix and accused are residents of same village. Accused was living with his wife and children in his house. Prosecutrix in cross-examination para 14 admitted that she had visited the house of accused and met his mother and wife also. The statement of prosecutrix that the accused had introduced his wife to her as maid servant, does not inspire confidence. It is not possible that in the same village, where prosecutrix and accused are living since birth, prosecutrix could not get information of the fact that the accused was a married person having children. During four years ofrelationship, it is not stated by the prosecution witnesses when prosecutrix or her parents asked the accused or his parents for marriage of prosecutrix with the accused. There is not even a whisper that they approached the respondent or his family members for marrying the prosecutrix. If prosecutrix was having relationship with the accused on promise of marriage, then it would be natural for her to make demand of performance of marriage within reasonable time. For four years not making any demand for marriage is not natural. Thus the conduct of the prosecutrix creates doubt on her evidence.

10. The finding of the trial Court in the present case is correct that the prosecutrix was aware that the respondent was already married person. It is not proved that accused had concealed the fact of his marriage from prosecutrix. The prosecutrix made sexual relations with the respondent/accused knowingly that he was a married person. It is not believable that the accused gave a false promise to marry her and persuaded her to make sexual relationship with him. It is also not proved that consent of prosecutrix has been obtained by misrepresentation and misconception of facts. Prosecutrix is a major woman, competent to giveconsent as per her will. For the offence of rape, it is necessary to prove beyond reasonable doubt that the sexual intercourse was committed against her will or without her consent.

 

HIGH COURT OF MADHYA PRADESH, JABALPUR

Misc. Criminal Case No.22431 of 2015
State of Madhya Pradesh
Vs
Gulab Chand Kahar
Present : Hon. Shri Justice S.K.Gangele
Hon. Shri Justice Anurag Shrivastava

O R D E R

(8.3.2017)

  1. 1. Being aggrieved by the judgment of acquittal dated 14.05.2015, passed by Special Sessions Judge, SC/ST (Prevention of Atrocities) Act, 1988, Anuppur, in Special Case No.66/2013, whereby the respondent/accused has been acquitted of the offences under Sections 376(2)(n), 506(Part-2) of IPC and section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, this petition for grant of leave to appeal under Section 378(3) of Cr.P.C., has been preferred by State.
  2. 2. The case of prosecution in brief is that on 10.8.2013 the prosecutrix lodged a report in police station Ajak, Anuppur stating that about four years ago when prosecutrix was sitting in the backyard of her house, the respondent/accused came there and forcefully took her to nearby field and committed rape on her without her consent. She tried to make a hue and cry, but was silenced by the accused by threatening her and also by making her believe that he would marry her. Even after this incident, he had sexual relations with her on more than one occasion for last four years on the pretext of marriage. Some days before lodging of report, when prosecutrix repeatedly made demand for marriage, the respondent denied to marry her. Prosecutrix came to know that the respondent was already married and had children. Thereafter, the prosecutrix lodged the complaint before police as stated above.
  3. 3. On complaint of prosecutrix a FIR Ex.P-1 has been recorded and an offence under section 376(2)(n), 506(Part-2) of IPC and section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 has been registered against the respondent and after usual investigation a charge-sheet has been filed in the Court. The trial Court framed the charges under section 376(2)(n), 506(Part-2) of IPC and section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the respondent, he abjured guilt. After recording of evidence the trial Court passed the impugned judgment and acquitted the respondent on the ground that the prosecutrix is a consenting party and no offence has been found proved beyond reasonable doubt against the respondent.
  4. 4. It is argued by learned counsel for the petitioner/State that from the statement of prosecutrix, it is proved that the accused had committed rape and thereafter had sexual intercourse with the prosecutrix on several occasions during last four years on the false pretext of marriage. The respondent/accused was already married having children. The consent of the prosecutrix was obtained on false representation and promise. Therefore the trial Court had wrongly acquitted the accused treating the prosecutrix as consenting party. The findings of the trial Court are erroneous, arrived at on wrong appreciation of evidence and liable to be set aside. Thus, the leave to appeal may be granted.
  5. 5. Considering the arguments of learned counsel for State and on perusal of record, it appears that the main allegation against the accused is that he obtained the consent of prosecutrix on false representation that he intends to marry her. Therefore, this aspect of case whether the prosecutrix has made relations with the accused on her free will or whether her consent was obtained on false representation has to be considered.
  6. 6. In the case of Deelip Singh Vs. State of Bihar [(2005) 1 SCC 88] Hon’ble Apex Court while defining the consent under section 90 of IPC in para 12 and 14 observed that : “Section 90 IPC, though, does not define “consent”, but describes what is not consent. It says that a consent is not such a consent as is intended by IPC (Sections 375 and 376 IPC in this case) if it is given under a misconception of fact. A misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact. The consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90 IPC.”
  7. 7. The prosecutrix lodged the report after four years of the first instance of alleged rape. From the statement of prosecutrix P.W.1 and eye witness P.W.5, it appears that on the same day, when accused committed rape on prosecutrix first time, this fact was brought into the notice of mother of prosecutrix, but no report of this incident had been lodged to police. Prosecutrix (P.W.1) in her statement admits that she had relations with the accused/respondent for the last four years, because the accused had made a promise to marry her. The parents of the prosecutrix P.W.6 (mother) and P.W.11 (father) also admitted this fact and stated that they knew that the prosecutrix and accused had sexual relations. Prosecutrix (P.W.1) in cross-examination para 14 has admitted that her relationship with the accused was known to everybody in the village and when village community objected to it and outcasted her, she had started living with the accused.
  8. 8. Thus, from the statement of the prosecutrix and her parents it is found that the prosecutrix and accused were in love and having relationship for the last four years. During this period the prosecutrix had physical relations with the accused. She lived with the accused in his house openly for long time.
  9. 9. Prosecutrix and accused are residents of same village. Accused was living with his wife and children in his house. Prosecutrix in cross-examination para 14 admitted that she had visited the house of accused and met his mother and wife also. The statement of prosecutrix that the accused had introduced his wife to her as maid servant, does not inspire confidence. It is not possible that in the same village, where prosecutrix and accused are living since birth, prosecutrix could not get information of the fact that the accused was a married person having children. During four years of relationship, it is not stated by the prosecution witnesses when prosecutrix or her parents asked the accused or his parents for marriage of prosecutrix with the accused. There is not even a whisper that they approached the respondent or his family members for marrying the prosecutrix. If prosecutrix was having relationship with the accused on promise of marriage, then it would be natural for her to make demand of performance of marriage within reasonable time. For four years not making any demand for marriage is not natural. Thus the conduct of the prosecutrix creates doubt on her evidence.
  10. 10. The finding of the trial Court in the present case is correct that the prosecutrix was aware that the respondent was already married person.It is not proved that accused had concealed the fact of his marriage from prosecutrix. The prosecutrix made sexual relations with the respondent/accused knowingly that he was a married person. It is not believable that the accused gave a false promise to marry her and persuaded her to make sexual relationship with him. It is also not proved that consent of prosecutrix has been obtained by misrepresentation and misconception of facts. Prosecutrix is a major woman, competent to give consent as per her will. For the offence of rape, it is necessary to prove beyond reasonable doubt that the sexual intercourse was committed against her will or without her consent.
  11. 11. Therefore, the trial Court has rightly held the respondent not guilty of the alleged offence of rape. Thus there is no substance in this appeal.
  12. 12. Consequently, the prayer for leave to appeal is dismissed.

(S.K.GANGELE) (ANURAG SHRIVASTAVA)

JUDGE JUDGE

Father in law & uncle did NOT rape me. I just went to PS, Police wrote false case, made me sign. Delhi case !

Innocent Woman says one thing in complaint (rape etc.) , repeats that in examination in chief (father in law & husband’s uncle raped me, husband had un unatural sex etc) and then in cross eamination, says the police wrote all the false complaint and she was forced to sign without reading the complaint !! She is protected, her name is withheld by the Hon. court and acused (earlier arrested etc) are acquitted. Of course NO punishment for Poor woman !!

Excerpts

“…Apart from levelling allegations of cruelty and dowry demands in the complaint, the prosecutrix had also stated therein that her husband Himanshu had been committing un-natural sex with her and Himanshu’s maternal uncle Rajesh had committed rape upon her on 14.5.2014….”

“….The accused Ashok and Rajesh were arrested after their bail applications were dismissed by the Sessions Court. The bail applications of the remaining accused were dismissed by the Sessions court but they were granted anticipatory bail by the High Court later on. ….”

“…In her examination in chief, she reiterated that she had been treated with cruelty by her in laws i.e. accused persons and cash in the sum of Rs. 5 lacs as well as heavy jewellery were being demanded from her. She also reiterated that accused Rajesh had committed rape upon her on 14.5.2014. She added that her father-in-law Ashok also committed rape upon her on 18.5.2014. She deposed that her husband used to show blue films to her and then used to have oral sex as well as anal sex with her…..”

“…..9. However, in the cross examination conducted on behalf of accused persons, she took a complete U-turn and deposed totally contrary to the prosecution case ……”, “....She further deposed that somebody had written the complaint in the police station, upon which she was asked to sign without being permitted to go through its contents. …”

“…It is thus evident that all the accused are innocent and none of them had inflicted any kind of cruelty (physical, mental or sexual) upon the prosecutrix. It is also manifest that none of the accused has made any dowry demand from the prosecutrix.

13. Therefore, the prosecution has failed to lead any cogent, credible or trust worthy evidence to prove the guilt of the accused. All the accused are, therefore, liable to be acquitted and are hereby acquitted….”


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

SC No.79/15

Unique Case ID No.02405R0080192015.

State

Vs.

  1. Ashok Kumar s/o Sh. Bhagwan
    R/o House No.481, Dutta Colony,
    Asand Road, Panipat, Haryana.
    (Discharged vide order dated 09.11.2015).
  2. Rajesh s/o Sh. Prem Singh
    R/o VPO Siwaha Distt Jind Haryana.

  3. Smt. Pushpa w/o Sh. Ashok Kumar
    R/o House No.481, Dutta Colony,
    Asand Road, Panipat, Haryana.

  4. Himanshu s/o Ashok Kumar,
    R/o House No.481, Dutta Colony,
    Asand Road, Panipat, Haryana.

  5. Smt. Priyanka w/o Praveen,
    R/o Patiala Chowk, Jind,
    Haryana.

  6. Praveen
    R/o Patiala Chowk, Jind,
    Haryana.
    (Discharged vide order dated 09.11.2015).

Date of Institution :10.07.2015.
FIR No.437/14 dated 15.07.2014.
U/s.376/498A/34 IPC.
P.S. Baba Haridas Nagar.

Date of reserving judgment :16.12.2015.
Date of pronouncement : 22.12.2015.

JUDGMENT

 

  1.  Accused Ashok Kumar, Rajesh, Himanshu, Praveen, Priyanka and Pushpa had been charge sheeted by the prosecution for having committed the offence punishable u/s 498A/406/34 IPC.
  2. According to the prosecution case, the prosecutrix namely ‘P’ (real name has been withheld in order to conceal her identity) had submitted a written complaint in the police station against the above named persons. Accused Himanshu is her husband, accused Ashok and accused Pushpa are her parents in law, accused Priyanka is her sister in law, accused Praveen is Priyanka’s husband and accused Rajesh is the maternal uncle of Himanshu. Apart from levelling allegations of cruelty and dowry demands in the complaint, the prosecutrix had also stated therein that her husband Himanshu had been committing un-natural sex with her and Himanshu’s maternal uncle Rajesh had committed rape upon her on 14.5.2014. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. FIR was registered on the aforesaid complaint of the prosecutrix and the investigation was entrusted to SI Suman. She got the medical examination of prosecutrix conducted and seized the exhibits given by the doctor. The prosecutrix was produced before a lady Magistrate, who recorded her statement u/s 164 Cr.P.C. The accused Ashok and Rajesh were arrested after their bail applications were dismissed by the Sessions Court. The bail applications of the remaining accused were dismissed by the Sessions court but they were granted anticipatory bail by the High Court later on. They joined the investigation and were interrogated by the IO. All the exhibits of the case were sent to the FSL by the IO for forensic examination.
  4.  After completion of the investigation, the IO prepared the charge sheet and submitted the same to the court concerned. Upon committal of the case to the court of sessions, the accused Ashok and accused Praveen were discharged vide order dated 9.11.2015 by this court. However, charge u/s 377 IPC was framed against accused Himanshu, charge u/s 376 IPC was framed against accused Rajesh and charge u/s 498A IPC and u/s 506/34 IPC was framed against three accused Himanshu, Pushpa and Priyanka. Further charge u/s 406 IPC was also framed against accused Pushpa.
  5. All the accused denied the charges and hence trial was held.
  6. The prosecution examined 7 witnesses to prove the charges against the accused. The accused were examined u/s 313 Cr.P.C. on 16.12.2015 wherein all of them denied the prosecution case and claimed false implication. However, they did not lead any evidence in defence.
  7. I have heard ld. APP, ld. Counsel for accused and have perused the entire record.
  8. The prosecutrix has been examined as PW4. In her examination in chief, she reiterated that she had been treated with cruelty by her in laws i.e. accused persons and cash in the sum of Rs. 5 lacs as well as heavy jewellery were being demanded from her. She also reiterated that accused Rajesh had committed rape upon her on 14.5.2014. She added that her father-in-law Ashok also committed rape upon her on 18.5.2014. She deposed that her husband used to show blue films to her and then used to have oral sex as well as anal sex with her.
  9. However, in the cross examination conducted on behalf of accused persons, she took a complete U-turn and deposed totally contrary to the prosecution case as well as to her deposition in examination in chief. She admitted that none of the accused had ever beaten her or had ever demanded dowry from her. She admitted that neither her husband nor any of her in laws had inflicted any physical, mental or sexual harassment upon her. She deposed that her parents had told her that her husband has eloped alongwith the wife of his own cousin and upon hearing this she became enraged and in a fit of rage as well as upon their instigation, she went to police station to lodge a complaint. She further deposed that somebody had written the complaint in the police station, upon which she was asked to sign without being permitted to go through its contents. She admitted that the contents of the application were not even read over to her before taking her signatures upon the same. The complaint was read over to her in the court and she stated that its contents are false and incorrect. She deposed that no incident as deposed by her had infact taken place. She stated that she reiterated the contents of the complaint in her statement to the ld. MM and in her examination in chief also on the asking of the police officials including the IO. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  10. She was re-examined by the ld. APP with the permission of the court and in her re-examination, she denied that she had submitted the complaint Ex. PW4/A in the police station voluntarily and not in a fit of rage or upon the instigation of her parents. She also denied that the contents of her complaint Ex. PW4/A and her statement u/s 164 Cr.P.C. Ex. PW4/B were true and correct.
  11. PW5 is the father of prosecutrix and PW6 is her mother. In their examination in chief, they also deposed that their daughter i.e. the prosecutrix was treated with cruelty by her in laws and they had been demanding a car, Rs. 5 lacs in cash and heavy jewellery from her. However, in the cross examination, they also admitted that prosecutrix was never harassed by her in laws or by her husband at any point of time. They expressed ignorance about the contents of the complaint Ex. PW4/A stating that it was neither written by them nor by their daughter. They admitted that when they heard that their son-in-law Himanshu had eloped with the wife of his cousin, they got enraged and pressurised their daughter to file a case against him. PW6 also admitted that her daughter had not told her that Himanshu’s maternal uncle Rajesh had raped her.
  12. These were the three star witnesses of the prosecution. All of them have deposed totally contrary to the prosecution case in their cross examination. They have said one thing in the examination in chief and have given totally contrary version in their cross examination. It is thus evident that all the accused are innocent and none of them had inflicted any kind of cruelty (physical, mental or sexual) upon the prosecutrix. It is also manifest that none of the accused has made any dowry demand from the prosecutrix.
  13. Therefore, the prosecution has failed to lead any cogent, credible or trust worthy evidence to prove the guilt of the accused. All the accused are, therefore, liable to be acquitted and are hereby acquitted.

Announced in open (VIRENDER BHAT)
Court on 22.12.2015. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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From Rapist to Bhabhi !! Rape case filing woman changes her statement completely. One wonders why !!

married woman, mother of two says neighbor gave her NIMBU pani and raped her ! He continued with such rapes later as well !! After police complaint, FIR etc, man is dragged to courts. At the court, during cross examination, she turns hostile and says man called her “Bhabi” and did NOT rape her.

she goes on to say that the complaint was DICTATED by the police !! Hon. Judge Sahib infers that the case was probably instigated by neighbours !!

You are left wondering what did she GET to suddenly give up her case !!! One more RAPE closed, god know what transpired

Case is closed, of course needless to say NO punishment for ablaa / prosecutrix, complainant

Excerpts
********************
“…Around one year ago prior to filing of present complaint, accused called the prosecutrix at his room and served her lemon water (nimbu paani). Thereafter, accused closed the door of the room and forcibly made physical relationship with her against her will and without her consent. Thereafter, in the month of January, 2015, when husband of prosecutrix was away from his home, accused again forcibly made physical relation with her against her will and without her consent. On 21.06.2015, when the prosecutrix was sleeping with her children on the roof of the said house, accused came there and tried to take her downstairs. …”

“..After completion of investigation, the challan was filed before the learned Metropolitan Magistrate on 04.08.2015. Thereafter, the case was committed to the court of learned District & Sessions Judge, Patiala House Court, ..”

“…In her statement, PW1/prosecutrix stated that accused used to visit her house and called her bhabhi. The accused was abusing in filthy language to her at his own. The accused did not make any forcible physical relationship with her. In her statement recorded u/s 164 Cr.P.C before the learned Magistrate, she stated that accused was abusing in filthy language but she was not sure as to whom accused was abusing. No forceful untoward incident caused upon her by the accused. She also categorically stated that accused did not commit rape upon her…”

In her examination in chief, PW1/prosecutrix has deposed that she went to PS and made handwritten complaint Ex.PW1/A which was dictated by the police officials.

“…it is held that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Accordingly, accused Gulshan Kumar is acquitted of charge leveled against him…”

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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Delhi District Court
State vs . Gulshan Kumar on 31 October, 2015
Author: Sh. Devendra Sharma

IN THE COURT OF SH. DEVENDRA KUMAR SHARMA,
ADDITIONAL SESSIONS JUDGE/SPL. FAST TRACT COURT
PATIALA HOUSE COURT/NEW DELHI

SC No. 40/15
FIR No. 317/15
PS Naraina
U/s 376/506 IPC

State Vs. Gulshan Kumar
s/o Vijay Prasad
r/o CB-222, Naraina Ringh Road, New Delhi

Unique ID No.
Date of Institution 04.08.2015
Argument heard/order reserved 31.10.2015
Date of judgment 31.10.2015
Final Order Acquitted

JUDGMENT

1. Succinctly, the facts of the case are that for the last five years prior to incident, the prosecutrix ‘S’ were residing in a rented house in the area of Naraina. Accused was also residing in the same building at 4 th floor on rent. He was having friendly terms with the husband of prosecutrix and also used to come to their house. Around one year ago prior to filing of present complaint, accused called the prosecutrix at his room and served her lemon water (nimbu paani). Thereafter, accused closed the door of the room and forcibly made physical relationship with her against her will and without her consent. Thereafter, in the month of January, 2015, when husband of prosecutrix was away from his home, accused again forcibly made physical relation with her against her will and without her consent. On 21.06.2015, when the prosecutrix was sleeping with her children on the roof of the said house, accused came there and tried to take her downstairs. While doing aforesaid wrong acts during the said period, accused also threatened the prosecutrix not to disclose about the incidents to anyone. These were the allegations upon which present FIR was registered against the accused.

2. After completion of investigation, the challan was filed before the learned Metropolitan Magistrate on 04.08.2015. Thereafter, the case was committed to the court of learned District & Sessions Judge, Patiala House Court, New Delhi from where the case was assigned to this court vide order dated 17.08.2015.

3. On 03.09.2015, charge was framed against the accused for the offence punishable u/s 376 and 506 of IPC to which accused pleaded not guilty and claimed trial.

4. In order to substantiate the allegations, recording of evidence started on 01.10.2015. On that date, the prosecution examined the prosecutrix/complainant as PW1. The complainant/prosecutrix/PW1 was the only witness who could prove the prosecution case but she turned hostile and did not support prosecution story on material point. Remaining witnesses were formal in nature and therefore, remaining prosecution evidence was closed. Statement of accused was dispensed with and matter was listed for final arguments.

5. Today, case was listed for final arguments. Final arguments heard on behalf of both the parties. I have also gone through the records.

6. It is argued on behalf of the State that though, the prosecustrix has not supported the prosecution case on some material point ie committing of rape by the accused on the alleged date of incidents, yet her entire testimony cannot be discarded as in the cross examination on behalf of state, the prosecutrix has clearly admitted contents of her complaint Ex.PW1/A against the accused. She also admitted that her statement u/s 164 Cr.P.C Ex.PW1/B was recorded by the learned Magistrate and also identified her signature on the statement Ex.PW1/B. Therefore, accused may be convicted for the alleged offence.

7. On the other hand, learned defence counsel argued that accused has been falsely implicated in this case. The allegations in the FIR are false, fabricated and concocted. In her statement u/s 164 Cr.P.C, prosecutrix has not uttered about the alleged rape. In her evidence before the court, prosecutrix/PW1 has also clearly stated that accused did not make any forcible physical relationship with her nor he committed rape upon her. On these grounds, it is prayed that accused may be acquitted of charges leveled against him.

8. The allegations against the accused are that somewhere in the year 2014, accused called the prosecutrxi who used to reside with her husband and children in the same building, at his room at 4th floor. When she entered the room of the accused, she was served with lemon water. In the meantime, accused closed the door from inside and made physical relationship with her forcibly for the first time. Second time, she was raped in the month of January 2015 when her husband was out of Delhi.

9. Section 375 IPC defines rape with a woman against her will. Relevant provision of section 375 IPC are reproduced for ready reference as under:-

375. Rape. – A man is said to commit “rape” if he –

a) ….

b) ….

c) ….

d) …..

under the circumstances falling under any of the following seven descriptions:-

First. – Against her will.

Secondly. – Without her consent.

Thirdly. – With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. – With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. – With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. – With or without her consent, when she is under eighteen years of age.

Seventhly. – When she is unable to communicate consent.

Explanation 1. – ….

Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

10. In the present case, prosecutrix/PW1 is the only witness who could prove the prosecution case. But she did not support the prosecution case and denied the material allegations. She was cross examined on behalf of the State despite that she did not support the prosecution case. In her statement, PW1/prosecutrix stated that accused used to visit her house and called her bhabhi. The accused was abusing in filthy language to her at his own. The accused did not make any forcible physical relationship with her. In her statement recorded u/s 164 Cr.P.C before the learned Magistrate, she stated that accused was abusing in filthy language but she was not sure as to whom accused was abusing. No forceful untoward incident caused upon her by the accused. She also categorically stated that accused did not commit rape upon her.

11. In her examination in chief, PW1/prosecutrix has deposed that she went to PS and made handwritten complaint Ex.PW1/A which was dictated by the police officials. She also denied the suggestion put by learned Addl. PP that she made the complaint at her own will without any dictation, fear, force and coercion. From bare perusal of her evidence given before the court as PW1 and statement u/s 164 Cr.P.C before the learned Magistrate, are taken together, it appears that present complaint was filed by the complainant/prosecsutrix after being instigated by her neighbours which fact has been disclosed by the prosecutrix in her statement u/s 164 Cr.P.C before the learned Magistrate. Otherwise also, her testimony does not inspire any confidence of commission of offence of sexual assault.

12. In view of the aforesaid discussions and facts and circumstances of the case, it is held that the prosecution has failed to prove its case against the accused person beyond reasonable doubt. Accordingly, accused Gulshan Kumar is acquitted of charge leveled against him.

Accused is directed to furnish fresh bail bond in the sum of Rs.25,000/- in terms of section 437A Cr.P.C. At this stage, fresh bail bonds furnished u/s 437A Cr.P.C furnished and accepted for a period of six months. His earlier bail bond stands cancelled. Surety stands discharged. Original documents, if any, be returned back to the rightful claimant after endorsement cancelled thereupon.

File be consigned to the Record Room after due completion.

(Devendra Kumar Sharma)

ASJ/FTC/Court No.7/PHC Lockup Building/31.10.15

Announced in open court on 31.10.2015.

(One spare copy attached)