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IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIALFAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 109/13.
U!"#$ C%&$ ID No. 0'0R0'*+3'011.
S%$ V&. A&-!&- K#%,S/o S-. B%!2$ P%,R/o A', K!% 4%2$,
U% N%5%,N$ D$-!.
D%$ o6 I&!#!o 7 '9.*.'011.
FIR No.13 2%$2 '1..'011.U/&. 3+8/08 IPC.P.S. B!2%#.
D%$ o6 $&$:!5 ;#25$/O2$ 7 0.1'.'013.D%$ o6 oo#
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me. He committed seual intercourse with me se!eraltimes and I had become pregnant somewhere in the
month o" July, 200#. I in"ormed him about the same
and as$ed him to solemni%e marriage with me but he
sought some time to con!ince his "amily and to marry
his two elder sisters "irst. He insisted me to abort and
when I re"used, he blac$mailed me saying that he
would not marry me i" I did not abort. &here"ore, I gotmy pregnancy aborted. All the times, he $ept on
promising me that he would marry me a"ter the
marriage o" his sisters. 'hen both o" his sisters had
got married, I as$ed him to solemni%e marriage with
me but he again re(uested "or some more time. 'hen
I came to $now that he is getting married with
someone else, I rushed to his house in )elhi on0*.+.20. I stayed in his house "or 2 days and he
had seual relations with me at his house se!eral
times during that period. He had ta$en la$hs o" rupees
"rom me "or our marriage. -n 2*.+.20, he and his
parents too$ me to athan$ot /unab1 to solemni%e
my marriage with him but there all the "amily
members abused, harassed and insulted me. &hey told
me that since my parents are not ali!e, there is
nobody to support me and to "ight "or me. &herea"ter,
he too$ me to Amritsar saying that he will get married
to me there but he le"t me in "ront o" a gurudwara and
disappeared. I tried to contact him on his mobile
phone as well as on the mobile phone o" his "ather but
both the mobile phones were switched o"". rom
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Amritsar, I returned to )elhi alone by train on0.3.20. 'hen I reached his home, nobody was
there. I ha!e been cheated, harassed and insulted and
hence I re(uest you to ta$e necessary action against
them.4
3. -n the basis of aforesaid (ritten complaint of the
prosecutri$# I (as registered u/s.376/506 IP and investigation(as handed over to *I omnica. *he recorded statement of the
prosecutri$ u/s.161 r.P and got her medicall% e$amined in
2ospital on !1.5.!011 vide 4 o.1/11. 8$hibits handed over
b% the doctor (ere sei9ed b% her. Prosecutri$ (as not having in
her possession an% document regarding the abortion. -n
!3.5.!011 she (as produced before the 4d. agistrate# (ho
recorded her statement u/s.16: r.P. I- collected the schoolcertificate of the prosecutri$ regarding her age (hich reveals her
date of birth to be !.3.1. "ccused came to be arrested on
0.6.!011. 2e (as got medicall% e$amined in 2ospital and
the e$hibits handed over b% the doctor (ere sei9ed. "ll the
e$hibits (ere sent to *4 for forensic e$amination. "fter the
completion of the investigation# harge *heet (as prepared and
submitted to the concerned 4d. agistrate.
:. pon committal of the case to the court of *essions#
harge u/s.376/506 IP (as framed against the accused on
!!.1!.!01!. "ccused ab;ured his guilt and accordingl% prosecution
(as called upon to lead its evidence.
5. The prosecution has e$amined 10 (itnesses to
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establish the guilt of the accused. 4d. "PP also tendered inevidence the *4 results 8$.P" < 8$.P+. The accused (as
e$amined u/s.313 r.P on 0!.7.!013 (herein he admitted that he
had started friendship (ith the prosecutri$ through =ahoo chat on
internet and used to meet her occasionall% but denied that he had
committed se$ual intercourse (ith her at an% point of time. 2e
claimed false implication in this case.
6. The accused has e$amined himself as >1 in his
defence. uring the course of his testimon%# he produced the
printout of various 8?mails and chats (hich had ta@en place
bet(een him and the prosecutri$ and (hich have been mar@ed as
ar@?" to ar@?*. The accused also e$amined his (ife as >!.
>3 is the *enior 8$ecutive of =ahoo India Pvt. 4td.# (ho deposed
that 8?mail Id Aashish@umar:B%ahoo.comC (as generated b% r."shish Dumar on 15..!00: and he had provided his alternate 8?
mail address as Amrashish@umar:Bgmail.comC. 2o(ever# the
(itness deposed that his office is unable to provide an% date
regarding 8?mail Id Adi%aEspiritB%ahoo.comC as the same is
registered in * omain and not in Indian omain. 2e proved his
affidavit in this regard as 8$.>3/+. >: is the anager
'"dministration and 2)# ./s. Deppel 4and International 4imited#
+angluru# (ho deposed that 8?mail Id AparvatiBelitahomes.comC
(as allotted b% their compan% to s. Parvati during the course of
her emplo%ment (ith the compan% and further stated that he has
not brought the records pertaining to said 8?mail Id as those have
alread% been erased b% the compan%. >5 is "ssociate anager
acilities# Infos%s 4imited# (ho deposed that the records pertaining
to official 8?mail account allotted to accused "shish has alread%
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been deleted from the records and are not available (ith thecompan%. 2e proved his detailed affidavit in this regard as
8$.>5/".
7. I have heard 4d. "PP# 4d. ounsel for the accused and
have perused the entire record.
. 4d. "PP vehementl% argued that accused has deceivedthe prosecutri$ b% ma@ing her to submit herself to intercourse (ith
him on the promise that he (ould marr% her (hich promise he
never intended to fulfill. *he submitted that it is evident from the
testimon% of the prosecutri$ that she gave consent for se$ual
intercourse (ith the accused onl% on the promise and assurance of
the accused that he (ould marr% her at an% cost. "ccording to
her# the accused obtained consent of the prosecutri$ to the se$ualintercourse b% deceit and fraud and hence he has committed the
offence of rape. *he further submitted that the printouts of 8?mails
and chats ar@?" to ar@?* produced b% the accused during his
testimon% cannot be loo@ed into as those are not accompanied b%
certificate u/s.65+ of Indian 8vidence "ct and for the reason that
those have not been put to the prosecutri$ in her cross
e$amination so as to elicit her comments regarding those.
2o(ever# she further submitted that even if these 8?mails and
chats are read in evidence# these support the case of the
prosecution that the accused had been assuring and promising the
prosecutri$ at ever% moment that he (ould marr% her. "ccording
to her# the accused is liable to be held guilt% for the offence of
rape.
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. -n the other hand# 4d. ounsel for the accusedvehementl% argued that there is no iota of evidence on record to
suggest that the accused at an% point of time promised the
prosecutri$ that he (ould marr% her. 2e submitted that the
prosecutri$ has mentioned neither in her (ritten complaint to the
police nor in her statement u/s.16: r.P that in her e$amination
in chief that she consented to intercourse (ith the accused onl% on
getting of assurance from the accused that he (ould marr% her.2e further submitted that the prosecutri$ has not mentioned in her
e$amination in chief the date (hen the se$ual intercourse too@
place bet(een the t(o for the first time and (hen the accused
made promise to her for the first time that he (ould marr% her. 2e
submits that even if it be assumed that accused had promised the
prosecutri$ that he (ould marr% her# still there is no evidence on
record that he had done so before engaging him in se$ualintercourse (ith her. 2e further submitted that the 8?mails and
chats bet(een the accused and the prosecutri$ ar@?" to ar@?*
are admissible in evidence as the% are supported b% the affidavit
of the accused# (ho had ta@en these printouts from the computer
and therefore the affidavit of the accused can be read as a
certificate u/s.65+ of the 8vidence "ct. 2e further submitted that
the accused (as not obliged to confront the prosecutri$ b% these
8?mails and chats during her cross e$amination. "ccording to him#
the accused is liable to be acFuitted.
10. The testimon% of the prosecutri$ is the most vital and
important piece of evidence for the prosecution in the instant
case. *he has been e$amined as P>. *he has disclosed her age
as !7 %ears. *he deposed that she had started chatting (ith the
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accused on internet in "pril/a%# !006 and ultimatel% bothbecame friends. The% met each other for the first time in +anglore
on 1:.7.!006 and enFuired about each other ;ob# famil% status etc.
"t that time# accused (as (or@ing (ith /s. Infos%s and (as
posted at %sore. Thereafter the accused used to visit +anglore
and met her at her house on (ee@ends and holida%s. "fter
sometime# the accused e$pressed his interest in solemni9ing the
marriage (ith her. 2e promised her that he (ould marr% her afterthe marriage of his t(o elder sisters# one of (hom (as divorcee.
2e e$pressed his inabilit% to get engaged to her but convinced her
that he (ould definitel% marr% her. 2e introduced her to his
parents and sisters and made her to tal@ to them on phone from
+anglore. *he further deposed that in the mid of ovember# !006
she along(ith accused (ent to her native place in 2%derabad to
meet her parents. "ccused convinced her that he (ould persuadehis parents and her sister also that he is going to marr% her. "fter
returning from 2%derabad# accused started sho(ing ph%sical
interest in her and as@ed her to engage into se$ual intercourse
(ith him but she sho(ed her disinclination for the same. *he told
her that the% should (ait uptill marriage but the accused provo@ed
her mentall% to such an e$tent that she had to give in. 2e told her
that he is going to be her husband and there is nothing (rong to
have se$ual intercourse (ith him. "fter intense mental and
ph%sical provocation# she engaged into se$ual intercourse (ith
him man% a times# as a result of (hich she had become pregnant
in the month of Gul%# !00 and later on had to abort the same at
the instance of the accused. *he further deposed that in ebruar%#
!00 accused got transferred to Pune office of Infos%s. *he (ent
to meet him in Pune in "ugust# !00# sta%ed (ith him for three
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da%s and thereafter accused committed intercourse (ith her. *heagain (ent to Pune in ovember# !00 and sta%ed (ith the
accused for t(o da%s. 8ver% time (hen she met the accused# he
convinced and assured her that he (ould marr% her. >henever
she as@ed him about the marriage# he used to tell her that his
sister&s marriage is fi$ed for a%# !010 and the% should (ait till
that time. *he had also helped the accused financiall% b%
transferring a huge amount to his ban@ account. *he furtherdeposed that in Gune# !010 the accused moved to elhi and told
her that since both of his sisters have been married# it is turn for
their marriage. *he came to elhi on 07..!010 and sta%ed in the
house of the accused for t(o da%s. 2e introduced her to his
parents and also had intercourse (ith her. "ccused promised and
assured her in front of her parents that he is going to marr% her. In
ovember#!010 she again visited the house of accused in elhi tofi$ the date of marriage but this time his parents told her that
accused is angli@ and the% should (ait for his marriage till he
completes !7 %ears of age. *he decided to (ait for fe( more
months till the accused completed !7 %ears of age. -n return from
elhi# she came to @no( from other sources that the parents of
the accused are searching for some other girl for the accused. *he
confronted the accused (ith the same but he denied all this sa%ing
that he cannot get married to an% other girl till he completes !7
%ears of age. *he again came to the house of the accused in elhi
on 0.:.!011 and sta%ed there for !1 da%s but during this period
she (as shoc@ed to see the behaviour of the accused&s parents
(ho told her to go bac@ and (ait further. *he (as thro(n out of
the house b% the parents of the accused in the night of 0.:.!011
itself and accused also slapped her but later on she (as allo(ed to
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come inside the house and sta% there. uring this period of !1da%s also accused @ept on assuring that he is going to marr% her.
uring that period also# the% had se$ual intercourse (ith each
other. -n 16.:.!011 accused too@ her to (ar@a ourt and
introduced her to a la(%er namel% eepa@ *ingh *indhu sa%ing
that he is planning a court marriage (ith her. The% filled up
marriage application form and accused paid a sum of s.10#000/?
to the la(%er as fee. "fter some da%s# accused told her that the%should not go for a court marriage as he is the onl% son of his
parents and his parents (ant a proper marriage to solemni9e at
their native place in Pathan@ot# Pun;ab. *he further deposed that
on !.:.!011# she along(ith accused# his parents and his cousin
2app% (ent to Pathan@ot# Pun;ab# in train and reached there in the
morning of 30.:.!011. The uncle of the accused and his aunt came
to receive them at rail(a% station and too@ them to 2otel *ta%(ellnear the rail(a% station. *oon after the% chec@ed into the hotel#
accused as (ell as his parents started sho(ing true colours. The%
abused her# beat her and used foul and filth% language (ith her.
"ccused also gagged her mouth (hen she tried to shout. "ccused
told her that he (as onl% enacting a drama and (hatever
happened bet(een them should be forgotten. In the afternoon of
30.:.!011 accused and his cousin 2app% too@ her to Holden
Temple# "mritsar# sa%ing that accused (ould marr% her there.
The% reached "mritsar at 6 p.m. and in front of the Holden Temple
also# accused assured her that he (ould marr% her. 2e told her to
close her e%es and pra% to the Hod. *he closed her e%es and
started pra%ing. "s soon as# she opened her e%es# she found that
the accused and his cousin had left and she (as alone. *he dialled
mobile number of the accused and his parents but all (ere
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s(itched off. *he called the brother?in?la( of the accused (hosta%s at +anglore but he also feigned ignorance about the
accused. *he sta%ed at "mritsar for the night and ne$t da% came
to elhi. *he directl% (ent to the house of the accused but it (as
loc@ed and the neighbours did not @no( an%thing about the
accused and his famil% members. *he sta%ed at elhi for some
da%s and tried to contact the accused but did not succeed.
ltimatel%# she visited P.*. +indapur and submitted a (rittencomplaint# on the basis of (hich I (as registered. *he (as
produced before a agistrate# (ho recorded her statement u/s.
16: r.P 8$.P>:/". "ccording to her# accused (as arrested from
his house in her presence on 0.6.!011 vide arrest memo
8$.P>!/".
11. In her cross e$amination# prosecutri$ 'P>) deposedthat she had been doing ;ob (ith /s. Deppel 4and international
4imited# +anglore# since the %ear !005 and her ;ob (as of
secretarial and administrative nature. *he ;oined + Hroup in
"ugust# !011. *he has been residing independentl% as a tenant in
+anglore since the %ear !003 and (as pa%ing a sum of s.5#000/?
as rent per month for one room set. *he further deposed that the%
'accused and the prosecutri$) had intercourse for the first time in
the month of ovember# !006 at the house of the accused at
+anglore. *he deposed that the accused had sho(ed interest in
getting marriage to her at the time of their first meeting itself i.e.
1:.7.!006. Thereafter he slo(l% used to put it in her mind that he
(ould marr% her. In the month of "ugust# !006# he promised that
he (ould marr% her but did not give an% specific time frame for
marriage. *he met the parents of the accused for the first time in
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*eptember# !00 at the time marriage of his elder sister at+anglore. *he deposed that the purpose of visit of accused to her
native house at 2%derabad in ovember# !006 (as to assure her
famil% members about their marriage and nothing else. *he
e$plained that b% his statement in the e$amination in chief that
the accused mentall% provo@ed her to have se$ual intercourse
(ith him# she meant that he convinced her as (ell as her famil%
members that he (ould marr% her in an% event and there isnothing (rong in having se$ual intercourse bet(een them before
the marriage. *he consented to the se$ual intercourse (ith him
onl% because of his promise of marriage even though he did not
give an% definite time frame for marriage and told her that
marriage (ould be possible onl% after the marriage of his t(o
sisters. The accused used to tell her that if she is not going to
satisf% her husband i.e. him# (here (ill he go. " specific Fuestion(as put to her b% the 4d. ross e$amining ounsel that if she had
an% @ind of fear that if she did not engage in se$ual intercourse
(ith the accused# he (ould not marr% her or that she had an% @ind
of temptation that he (ill marr% her onl% if she had intercourse
(ith him. *he replied that the onl% reason for (hich she consented
to have se$ual intercourse is that she had become convinced that
he (ould marr% her. *he further deposed that after she had come
to @no( about her pregnanc%# she informed the accused# (ho
advised her to abort the same. "ccordingl%# she visited the clinic
of r. *umangla near her residence at +anglore and consumed the
tablets (hich (ere prescribed b% the doctor. The tablets (ere
purchased b% the accused but she did not remember e$actl% ho(
man% tablets did she consume. *he deposed that she had gone to
Pune to meet the accused in "ugust# !00# ovember# !00 and
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"pril# !010. The accused did not come to +anglore from Pune tomeet her. In Pune# she sta%ed (ith the accused at his residence.
1!. rom the aforesaid testimon% of the prosecutri$# it is
evident that she (as about !0 %ears old in the %ear !006 (hen
she started friendship (ith the accused. *he (as (ell educated
and doing a ;ob of secretarial and administrative nature (ith a
reputed compan% of +anglore. *he (as an independent lad% andhad been residing on rent alone in +anglore since the %ear !003.
*he had strong inclination to(ards the accused and used to spend
time (illingl% (ith him. *he used to visit his place of residence off
and on# even in Pune and elhi and spent nights (ith him. The
ph%sical relations bet(een her and the accused had developed
(ith her consent as admittedl%# she had neither offered an%
resistence nor had complained to an%bod% about the acts of theaccused. *he used to e$change 8?mails (ith the accused and used
to chat (ith him and the accused had been giving her assurance
that he (ould marr% her but never gave an% specific time frame
for the same. *he continuousl% used to have ph%sical relations
(ith the accused till the %ear !011.
13. To rebut the allegations levelled b% the prosecutri$
against him# the accused has entered the (itness bo$ himself as
>1. 2e disclosed his aged as ! %ears and deposed that he
;oined Infos%s in a%# !006 as *%stem 8ngineer and remained
there till Gune# !010# (hen he ;oined "ccenture *ervices Pvt. 4td.
2e (as sta%ing in +anglore from -ctober# !006 to ebruar%# !00.
2e deposed that initiall% he (as chatting (ith the prosecutri$ at
her 8?mail I i%aEspiritB%ahoo.com. *he has sent her
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photographs through 8?mails on 05.7.!006 and 10.7.!006 but hedid not repl% his 8?mails. "fter a fe( da%s# the prosecutri$ made a
call on his mobile number sa%ing that the% should start friendship
as the% share common vie(s. "s per her reFuest# the% met at
+anglore bus stand in the end of Gul%# !006 for the first time (hen
he (as coming to elhi. *he told him that she is in a depressed
state of mind as a person named mesh (ith (hom she (as in a
relationship had got married. Thereafter# she @ept on calling himregularl% and also used to come to meet him at his office. 2e
deposed that he never promised to marr% the prosecutri$. 2e also
did not convince her parents about their marriage at the time of
their visit to her native village. "ccording to him# it (as the
prosecutri$# (ho had been insisting upon him to marr% her but he
had told her categoricall% that his focus is on his career and not on
marriage. 2e also deposed that the prosecutri$ told him that herfriend upa had found a match for her but she turned do(n the
proposal as she (anted to marr% him. "t that time also# he
re;ected the marriage proposal. 2e deposed that the prosecutri$
@ept on calling him and during those calls# she (as alluring him to
have ph%sical relations (ith her. -n 1:.5.!00 she told him that
she is going to marr% a bo% named i@ram in Trichi in Tamilnadu.
Thereafter# i@ram assaulted her ph%sicall% and she had sent the
photographs in this regard. *he also demanded s.50#000/? from
him but he did not give mone% to her. Thereafter the prosecutri$
again started insisting upon him to marr% her b% sa%ing that she
(ants to marr% him onl%. 2e further deposed that in Ganuar%# !00
(hen the prosecutri$ had called him for a fare(ell lunch to her
residence in +anglore on the occasion of his transfer to Pune# she
administered some sedatives to him and thereafter started
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tempting him for ph%sical relations but he resisted her temptationsand no se$ual intercourse too@ place. Thereafter# the prosecutri$
again started harassing him b% transferring the amount of s.
1#!0#000/? to his account (ithout an% intimation to him and
(ithout disclosing her account number. 2o(ever# (ith some
difficult%# he got to @no( about the account number of the
prosecutri$ and deposited the amount bac@ in her account. In
ecember# !00 he informed her about his engagement in Pun;ab.*he again transferred a sum of s.1 4ac in his account and told
him that he could not return this amount to her and also closed
her ban@ account. 2e submitted an application to his ban@ i.e.
III +an@ as@ing them as to from (hich account this sum of s.1
4ac had been transferred to his account and vide communication
dated !3..!010 '8$.>1/)# he (as informed that this amount
has been transferred from ban@ account no.01100!3!:!. >henhe made inFuiries from the prosecutri$ about her account number#
she started alleging that he made her to abort her pregnanc% in
the %ears !00 and !010. "gain after one (ee@# she transferred
further sum of s.1 4ac to his account and then closed her
account. 2e returned this sum of mone% also to her. 2e further
deposed that the prosecutri$ got to @no( from some common
friend that his marriage has been fi$ed for 10.5.!011 and she
came to their house in elhi on 0.:.!011. *he told the accused
that she had come in search of a ;ob and is sta%ing at Dhanpur.
2er advocate *h. eepa@ *ingh *indhu telephoned him on
16.:.!010 sa%ing that he had not returned mone% to her and in
that regard# he should meet him in the court. 2e sho(ed all the
transactions to the said advocate and the matter (as settled. *he
reFuested them to ta@e her to Pun;ab for attending the marriage
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ceremon%. "ccordingl%# his parents# his cousin 2app% and theprosecutri$ reached Pathan@ot on 30.:.!011. The parents of
2app% received them at the rail(a% station and the% chec@ed in
2otel *ta%(ell. 2is (ould be (ife and her parents had also come
there. "fter ta@ing meals the% all (ent to Holden Temple. In the
bus# the prosecutri$ (as sitting along(ith his (ife and she told her
that the% 'prosecutri$ and the accused) are alread% married and
(ere residing in +anglore as husband and (ife. 2is (ife informedher parents about the same and in the mean(hile# prosecutri$ ran
a(a% from there. 2is parents?in?la( called off the marriage and
insulted them. "fter fe( da%s# he along(ith his parents (ent to
his in?la(s house# sho(ed all the 8?mails to them and convinced
them that there (as no relationship of husband and (ife bet(een
him and the prosecutri$. The% got convinced and ultimatel%# their
marriage too@ place on !:.5.!011. 2e also deposed that theprosecutri$ has filed a false complaint against him (ith the
intention that he (ould not be able to marr% at elhi and (ould be
constrained to marr% her. "ccording to him# the prosecutri$ had
also tried to hac@ his 8?mail Id (hile he (as in custod% in this case
and after he (as released on bail# the prosecutri$ called his
parents and demanded s.!0 4acs from them or other(ise# she
(ould file a case against them at +anglore. *he has filed a false
complaint against them at +anglore also. 2e filed on record the
printouts of 8?mails and hats e$changed bet(een him and the
prosecutri$# (hich are ar@?" to ar@?*.
1:. In the cross e$amination# he denied that he had
promised to marr% the prosecutri$ in an% of the meetings (ith her.
2e also denied that he had assured her parents that he (ould
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marr% her. 2e deposed that it (as on the insistence of theprosecutri$ that he along(ith his t(o friends visited her house in
her native place. 2e denied that 8?mails ar@? and ar@?* are
fabricated and manipulated. 2e also denied that the prosecutri$
had become pregnant from his loin in Gul%# !00 and he as@ed her
to terminate the pregnanc% or other(ise# he (ould not marr% her.
2e deposed that upon his transfer to Pune on 07.!.!00 he had
not apprised the prosecutri$ about his Pune address. 2e admittedthat the prosecutri$ had come to Pune in "ugust# !00 but denied
that she had visited his residence or sta%ed (ith him for three
da%s or that the% had ph%sical relations during those three da%s.
"ccording to him# the% met in a restaurant in Pune. 2e admitted
that the prosecutri$ had again come to Pune in ovember# !00
but denied that she had sta%ed (ith him at Pune. "ccording to
him# the% met at *aha; =oga temple and other public places. 2ealso denied that the prosecutri$ visited his house in elhi on
07..!010 and he introduced her to his parents but denied that
she sta%ed in their house for t(o da%s. "ccording to him# she left
their house on the same da%. 2e further admitted that the
prosecutri$ had visited their house again in ovember# !010 and
then on 0.:.!011 but denied that she sta%ed (ith them for !1
da%s. "ccording to him# she sta%ed in their house for about : or 5
da%s and he did not e$tend an% promise of marriage during those
da%s and there (as no ph%sical relations bet(een them during
those da%s. 2e also deposed that his father *h. +al(inder Pal has
filed complaint against the prosecutri$ before a 4d. agistrate in
(ar@a ourt# e( elhi# regarding demand of s.!0 4acs made
b% her after he (as released on bail. 2e denied all other
suggestions put to him b% the 4d. "PP.
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15. rom the aforesaid testimon% of the accused# it
appears that there had been no se$ual relations bet(een him and
the prosecutri$ at an% point of time. It is also evident that the
prosecutri$ had been pestering him for se$ual intercourse but he
had been @eeping off from the same deliberatel% as he (anted to
focus on his career. 2e had never made an% promise or assurance
to the prosecutri$ that he (ould marr% her and it is the prosecutri$(ho had been time and again telling him that she (ants to marr%
him and for this reason# she had turned do(n a proposal of
marriage from her friend upa. It is also evident that the
prosecutri$ had once told him that she is going to marr% a bo%
i@ram in Trichi in Tamilnadu but that bo% assaulted her ph%sicall%
and the relations became sour. The prosecutri$ had been
transferring mone% to the ban@ account of the accused time andagain (ithout an% demand from him and (ithout his information#
probabl% to harass him and to create some evidence against him.
*he never sta%ed (ith the accused at his residence at +anglore or
at Pune. *he sta%ed in his house at elhi onl% once and that too
for ;ust : or 5 da%s. *he @ne( that the accused is going to marr% a
girl in Pun;ab on 10.5.!011 and had accompanied his famil% to
Pathan@ot on 30.:.!011 to attend the marriage ceremon% and
there she told the accused&s (ould be (ife that she is alread%
married to the accused and the% have been residing at +anglore
as husband and (ife.
16. ndoubtedl%# in cases involving offence of rape# the
testimon% of the prosecutri$# if found to be (orth% of credence as
(ell as reliable and inspiring confidence reFuires no corroboration
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and court ma% convict the accused on the basis of her soletestimon%. *he is undoubtedl% a competent (itness u/s.11 of
8vidence "ct and her evidence must receive the same (eight as is
attached to that of an in;ured in case of ph%sical violence.
2o(ever# if for some reason# the court is hesitant to place implicit
reliance on the testimon% of the prosecutri$# it ma% loo@ for some
other evidence on record# (hich ma% lend assurance to her
testimon%# short of corroboration reFuired in case of accomplice. Ifthe court finds it difficult to accept the version of the prosecutri$
at its face value# it ma% search for evidence# direct or
circumstantiall% (hich (ould lend assurance about her testimon%.
It also needs mention that even in cases of rape the onus is al(a%s
on the prosecution to prove affirmativel% all the ingredients of the
offence (hich it see@s to establish and such onus never shifts. It is
not the dut% of the defence to e$plain (h% and ho( the victim andother (itnesses have falsel% implicated the accused. The
prosecution case has to stand on its o(n legs and cannot ta@e the
support from the (ea@ness of the case of defence. 2o(ever# the
great suspicion against the accused and ho(ever strong the moral
belief and conviction of the court# unless the offence of the
accused is established be%ond reasonable doubt on the basis of
legall% admissible evidence and the material on record# the
conviction cannot be ordered. There is initial presumption of
innocence of the accused and the prosecution has to bring home
the offence against the accused b% reliable evidence. The accused
is entitled to benefit of ever% reasonable doubt.
17. In the instant case# the prosecution alleges that the
accused obtained consent of the prosecution for se$ual
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intercourse on the basis of false promise of marriage and thereforethe consent of the prosecution cannot be termed as free or fair#
the same being a tainted one and hence the accused has
committed offence of rape.
1. The *upreme ourt considered this issue at length in
case of U2%> :&. S%$ o6 K%%%?%, '003 (1) JCC 08, AIR
'003 SC 1839and held as under ,
It there"ore appears that the consensus o" udicialopinion is in "a!our o" the !iew that the consent gi!enby the prosecutri to seual intercourse with a personwith whom she is deeply in lo!e on a promise that hewould marry her on a later date, cannot be said to begi!en under a misconception o" "act. A "alse promise is
not a "act within the meaning o" the 5ode. 'e areinclined to agree with this !iew, but we must add thatthere is no strait ac$et "ormula "or determiningwhether consent gi!en by the prosecutri to seualintercourse is !oluntary, or whether it is gi!en under amisconception o" "act. In the ultimate analysis, thetests laid down by the 5ourts pro!ide at best guidanceto the udicial mind while considering a (uestion o"consent, but the 5ourt must, in each case, considerthe e!idence be"ore it and the surroundingcircumstances, be"ore reaching a conclusion, because
each case has its own peculiar "acts which may ha!e abearing on the (uestion whether the consent was!oluntary, or was gi!en under a misconception o" "act.It may also weigh the e!idence $eeping in !iew the"act that the burden is on the prosecution to pro!eeach and e!ery ingredient o" the o""ence, absence o"consent being one o" them.4
1. *imilarl%# in P%2$$ K#% @ P%2$$ K#%
V$% :&. S%$ o6 B!-% %., ('00+) + SCC 13# the
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*upreme ourt observed as under ,
&he "ailure to $eep the promise at a "uture uncertaindate due to reasons not !ery clear on the e!idencedoes not always amount to a misconception o" "act atthe inception o" the act itsel". In order to come withinthe meaning o" misconception o" "act, the "act mustha!e an immediate rele!ance. &he matter would ha!ebeen di""erent i" the consent was obtained by creatinga belie" that they were already married. In such a case
the consent could be said to result "rom amisconception o" "act. ut here the "act alleged is apromise to marry. 'e do not $now when. I" a "ullgrown girl consents to the act o" seual intercourse ona promise o" marriage and continues to indulge insuch acti!ity until she becomes pregnant it is an act o"promiscuity on her part and not an act induced bymisconception o" "act. 7ection *0 I5 cannot be calledin aid in such a case to pardon the act o" the girl and"asten criminal liability on the other, unless the 5ourt
can be assured that "rom the !ery inception theaccused ne!er really intended to marry her.4
!0. In D$$! S!5- @ D!! K#% :&. S%$ o6 B!-%,
AIR '00 SC '03# it has been observed ,
20. &he "actors set out in the "irst part o" 7ection *0are "rom the point o" !iew o" the !ictim. &he secondpart o" 7ection *0 enacts the corresponding pro!ision"rom the point o" !iew o" the accused. It en!isagesthat the accused too has $nowledge or has reason tobelie!e that the consent was gi!en by the !ictim inconse(uence o" "ear o" inury or misconception o" "act.&hus, the second part lays emphasis on the $nowledgeor reasonable belie" o" the person who obtains thetainted consent. &he re(uirements o" both the partsshould be cumulati!ely satis"ied. In other words, thecourt has to see whether the person gi!ing theconsent had gi!en it under "ear o" inury ormisconception o" "act and the court should also be
satis"ied that the person doing the act i.e. the alleged
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o""ender, is conscious o" the "act or should ha!ereason to thin$ that but "or the "ear or misconception,the consent would not ha!e been gi!en. &his is thescheme o" 7ection *0 which is couched in negati!eterminology.4
!1. The *upreme ourt again in D$$%? 4#%! :&. S%$
o6 H%>%%, C!!% A$% No.'3''/10 2$
'0..'013# held as under ,
5onsent may be epress or implied, coerced ormisguided, obtained willingly or through deceit.5onsent is an act o" reason, accompanied bydeliberation, the mind weighing, as in a balance, thegood and e!il on each side. &here is a clear distinctionbetween rape and consensual se and in a case li$ethis, the court must !ery care"ully eamine whetherthe accused had actually wanted to marry the !ictim,
or had mala "ide moti!es, and had made a "alsepromise to this e""ect only to satis"y his lust, as thelatter "alls within the ambit o" cheating or deception.&here is a distinction between the mere breach o" apromise, and not "ul"illing a "alse promise. &hus, thecourt must eamine whether there was made, at anearly stage a "alse promise o" marriage by theaccused8 and whether the consent in!ol!ed was gi!ena"ter wholly, understanding the nature andconse(uences o" seual indulgence. &here may be acase where the prosecutri agrees to ha!e seual
intercourse on account o" her lo!e and passion "or theaccused, and not solely on account o"misrepresentation made to her by the accused, orwhere an accused on account o" circumstances whichhe could not ha!e "oreseen, or which were beyond hiscontrol, was unable to marry her, despite ha!ing e!eryintention to do so. 7uch cases must be treateddi""erently. An accused can be con!icted "or rape onlyi" the court reaches a conclusion that the intention o"the accused was mala "ide, and that he hadclandestine moti!es.4
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!!. In the case at hand# the prosecutri$ in her complaint
dated 07.5.!011 to the police# on the basis of (hich I has been
registered# has no(here stated (hen did the accused e$tend
promise of marriage to her for the first time and (hen the% had
se$ual intercourse (ith each other for the first time. It is not clear
from the said complaint (hether ph%sical relations bet(een the
t(o started before the accused promised her to marr% or after
that. In her statement u/s.16: r.P 8$.P>:/" she has stated that
the% developed ph%sical relations for the first time in the %ear
!00. There is no mention of an% promise of marriage in that
statement. *he has simpl% mentioned that the accused gained her
trust and stated that the% (ill get married after the marriage of his
t(o sisters.
!3. In the e$amination in chief also# the prosecutri$ has
not mentioned (hen did the accused e$tend promise of marriage
to her for the first time and (hen did the% engage into ph%sical
relations for the first time. It is (hen she (as Fuestioned in this
regard in the cross e$amination that she stated that the accused
sho(ed interest in getting married to her at the time of their first
meeting itself on 1:.7.!006 and then in the month of "ugust# !006
he promised that he (ould marr% her but did not give an% specific
time frame for the same. In the cross e$amination# she stated that
the% had se$ual intercourse for the first time in the month of
ovember# !006. This is totall% contrar% to her statement u/s.16:
r.P 8$.P>:/" (here she had mentioned that the% had ph%sical
relations for the first time in the %ear !00. The first time (hen the
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accused committed se$ual intercourse (ith her has beendescribed b% the prosecutri$ in her e$amination in chief as under,
A"ter returning "rom Hyderabad, we continued to
meet each other and the accused started showing
physical interest in me. He started telling me to
engage into seual intercourse with him but I showed
my disinclination "or the same. I told him that weshould wait uptill our marriage. Howe!er, he pro!o$ed
me mentally to such an etent that I had to gi!e in.
He told me that he is going to be my husband and
there is nothing wrong i" I engaged into seual
intercourse with him. 9ltimately a"ter intense mental
and physical pro!ocation, I compellingly engaged into
seual intercourse with him many a times.4
!:. The aforesaid portion of the testimon% of the
prosecutri$ is patentl% an improvement over her previous
statements recorded during the course of investigation. In those
statements# she did not state that the accused obtained her
consent for se$ual intercourse after intense mental and ph%sical
provocation. 8ven if the aforersaid portion of her testimon% is
ta@en on its face value# it does not sho( that the accused obtained
her consent to the se$ual intercourse solel% on the basis of
promise to marr%. " promise to marr% is totall% different from the
mental and ph%sical provocation# as mentioned b% the prosecution
in her testimon%. If a bo% engages a girl# (hom he loves# in
se$uall% e$plicit tal@s and during those tal@s touches her sensitive
bod% parts so that she becomes se$uall% active and consents to
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se$ual intercourse# it can be said that the bo% provo@ed the girlmentall% and ph%sicall% to have ph%sical relations (ith him but it
cannot be said that he obtained her consent b% an%
misconception# fraud or an% other promise. ental and ph%sical
provocation is altogether different from a promise to marr% and
the t(o cannot be eFuated. There is no categorical statement of
the prosecutri$ in her e$amination in chief that she gave consent
for se$ual intercourse (ith the accused onl% on the basis of herpromise to marr% or on account of an% threat or pressure from the
side of the accused. It is evident that she did not offer an%
resistance and did not tr% to leave that place. I consider it not
proper for a girl to engage in se$ual intercourse (ith a bo% (ho
simpl% tells her that he is going to be her husband and there is
nothing (rong in engaging her into se$ual intercourse (ith him. It
(as for the girl in such circumstances to (eigh the pros and consof the intended act and to decide (hether or not she should
submit her a bod% to the bo%.
!5. It is important to note her that the prosecutri$# in none
of her statements mentions the place (here the accused held out
promise of his marriage to her for the first time or (here the% had
ph%sical relations (ith each other for the first time.
!6. The prosecutri$ had herself mentioned in each of her
statement that the accused did not give her an% specific time
frame of marriage. Therefore# the prosecutri$ (as having no
guarantee (hen the accused (ould marr% her and in these
circumstances# she should have been more circumspect before
giving her consent for se$ual intercourse.
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!7. The statement of the prosecutri$ in her cross
e$amination that she consented to have se$ual intercourse (ith
the accused onl% for the reason that she had become convinced
that she (ould marr% her does not appeal to an% reason in vie( of
(hat has been discussed herein above. I fail to understand ho(
the prosecutri$ had got convinced in ;ust t(o or three months
after her first meeting (ith the accused that he (ould definitel%marr% her. I m%self do not feel convinced and satisfied that the
prosecutri$ (as misled b% an% promise or utterance of the accused
and she gave her consent to the se$ual intercourse (ith him
because of the same. It appears that the prosecutri$ being a
mature# educated and emplo%ed lad%# understood the nature and
conseFuence of se$ual indulgence (ith the accused and agreed to
have se$ual intercourse (ith him onl% on account of her love andpassion for him and not solel% on account of an% alleged
misrepresentation.
!. oming to the printouts of 8?mails e$changed bet(een
the parties and their hats on the internet# filed b% the accused at
the time of his deposition as >1. These have been mar@ed as
ar@?" to ar@?*. These (ere not e$hibited at that time as this
court (as in doubt (hether these have been sufficientl% proved as
per the Indian 8vidence "ct. These include transcripts of internet
chats bet(een the prosecutri$ and the accused dated !7.11.!006#
07.1!.!006# 1:.5.!00# 0.6.!00 and !:..!010 from their
respective 8?mails I parureddiBgmail.com and
mrashish@umar:Bgamil.com. These also include transcripts of 8?
mails dated 16.1.!007# 15.6.!007# 30.11.!007# 0.1.!00#
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17.!.!00# 11.!.!00 and 17.!.!00# sent b% prosecutri$ from heraforesaid 8?mail I to the accused on his aforesaid 8?mail I.
These also include transcripts of 8?mails dated 1!.!.!00 sent b%
the prosecutri$ from her another 8?mail I
parvathiBelitahomes.com to the accused and 8?mail dated
1!.7.!010 sent b% the prosecutri$ from her another 8?mail Id
saha;parvatiBgmail.com to the accused. o Fuestion has been put
to >1 in his cross e$amination regarding authenticit% andgenuineness of the aforesaid 8?mail as (ell as internet chats. It is
manifest that the prosecution does not dispute that the t(o 8?
mails Is referred to in these 8?mails and internet chats do not
belong to and (ere not operated b% the prosecutri$.
!. ormall%# in order to prove an electric record# the
reFuirements of section 65+ of the 8vidence "ct have to becomplied (ith but there is no bar in adducing secondar% evidence
in their proof under the provisions of sections 63 and 65 of the
8vidence "ct. It is a matter of common @no(ledge that 8?mails and
internet chats are stored in ver% huge servers of internet service
provider and those servers cannot be produced in the court.
Therefore (hen a (itness produces the printouts of the 8?mails
and internet chats in the court certif%ing that these have been
obtained truthfull% and correctl%# the printout documents
admissible as secondar% evidence in vie( of section 63 of the
8vidence "ct# unless these are disputed b% the other side. *ection
63 reads as under ,
6:. 7econdary e!idence. ; 7econdary e!idence
means and includes ;
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/1 certi"ied copies gi!en under the pro!isionshereina"ter contained8
/21 copies made "rom the original by mechanical
processes which in themsel!es insure the accuracy o"
the copy, and copies compared with such copies8
/:1 copies made "rom or compared with the original8
/+1 counterparts o" documents as against the
parties who did not eecute them8/31 oral accounts o" the contents o" a document
gi!en by some person who has himsel" seen it.4
30. In this regard# I ma% profitabl% refer to follo(ing
passage from the ;udgment of the *upreme ourt reported as
'00 (11) SCC 800, S%$ :&. N%:;o S%2-#,
According to section 6:, secondary e!idence meansand includes, among other things, 5opies made "romthe original by mechanical process which inthemsel!es ensures the accuracy o" the copy, andcopies compared with such copies4. 7ection 63enables secondary e!idence o" the contents o" adocument to be adduced i" the original is o" suchnature as not to be easily mo!able. It is not in dispute
that the in"ormation contained in the call records isstored on huge ser!ers which cannot be easily mo!edand produced in the court. &hat is what the High 5ourthas also obser!ed at page 2
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which is a pro!ision dealing with the admissibility o"electronic records, there is no bar to adducingsecondary e!idence under the other pro!isions o" the>!idence Act, namely, sections 6: and 63. It may bethat the certi"icate containing the details in subsection /+1 o" section 63 is not "iled in the instantcase, but that does not mean that the secondarye!idence cannot be gi!en e!en i" the law permits suche!idence to be gi!en in the circumstances mentionedin the rele!ant pro!isions, namely sections 6: and63.4
31. In the instant case# the 8?mails and internet chats
ar@?" to ar@?* produced b% the accused during the course of his
testimon% have not been disputed from the side of the
prosecution. >1 in his testimon% has certified their correctness
and accurac%. Therefore# I am of the opinion# those have been
proved as per la( and I hereb% mar@ them as 8$.G1 'coll%).
3!. The 8?mails and internet chats bet(een the
prosecutri$ and the accused tell a totall% different stor%. It is
manifest from these that in fact# it (as the prosecutri$# (ho (as
insisting upon the accused to have se$ual intercourse (ith her and
the accused (as not inclined to the same. It is also apparent from
these 8?mails and chats that the prosecutri$ (as not sure (hether
or not the accused (ould marr% her and still she (as pestering
him for ph%sical relations. The contents of these 8?mails and
internet chats totall% contradict the version of the prosecutri$ and
destro% the prosecution case in totalit%. In fact# these advance the
defence ta@en b% the accused that he did not engage into se$ual
intercourse (ith the prosecutri$ at an% point of time and had
never promised to marr% her and he as (ell as the prosecutri$
(ere merel% friends. These 8?mails and internet chats corroborate
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the testimon% of >1# (hich has been alread% noticed herein?above.
33. There is not even a slightest indication in the aforesaid
8?mails and internet chats bet(een the accused and the
prosecutri$ that the accused had held out an% promise of marriage
to her and she consented to se$ual intercourse (ith the accused
onl% for that promise and in fact# se$ual intercourse had ta@enplace bet(een the t(o. It is another thing that the prosecutric had
the impression that the accused also loves and intends to marr%
her. The conduct of the accused ma% have given rise to such
impression in the mind of the prosecutri$ but that alone is not
sufficient to hold that the consent of the prosecutri$ for
intercourse (ith the accused (as not voluntar%. There is nothing
in these 8?mails or internet chats to demonstrate that the accusedhad assured her on an% point of time that he (ould marr% her. If#
in fact# the prosecutri$ had consented to se$ual intercourse (ith
the accused onl% on later&s promise of marriage# she (ould have
said so in these 8?mails. *he has not mentioned even a (ord in
these 8?mails or in internet chats about an% promise of marriage
held out to her b% the accused.
3:. o( even if it be assumed to be true that the accused
at some point of time had held out a promise of marriage to the
prosecutri$ and the prosecutri$ indulged in intercourse (ith the
accused on such promise# I (onder ho( the intercourse bet(een
the t(o in such circumstances (ould amount to rape.
35. In m% opinion# ever% act se$ual intercourse bet(een
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t(o adults on the assurance of promise of marriage does notbecome rape# if the assurance or promise is not fulfilled later on b%
the bo%. >hen a gro(n up# educated and office going (oman
sub;ects herself to se$ual intercourse (ith a friend or colleague on
the latterJs promise that he (ould marr% her# she does so at her
o(n peril. *he must be ta@en to understand the conseFuences of
her act and must @no( that there is no guarantee that the bo%
(ould fulfill his promise. 2e ma% or ma% not do so. *he mustunderstand that she is engaging in an act (hich not onl% is
immoral but also against the tenets of ever% religion. o religion in
the (orld allo(s pre?marital se$.
36. The alcutta 2igh ourt in the case of J%>%! R%!
P%2% V&. S%$ o6 W$& B$5% A., 19* C!.L.J. 13
observed that in order to come (ithin the meaning ofmisconception of fact# the fact must have an immediate relevance.
It (as also observed that if a full% gro(n up girl consents to the
act of se$ual intercourse on a promise of marriage and continues
to indulge in such activit% until she becomes pregnant it is an act
of promiscuit% on her part and not an act induced b%
misconception of fact and it (as held that *ection 0 IP can not
be invo@ed unless the court can be assured that from the inception
accused never intended to marr% her.
37. 2o(ever it can not be said that in no case# having
se$ual intercourse (ith a girl on the basis of a promise to marr%
(ould amount to commission of rape. 8ver% such case has to
e$amined on its individual facts and attending circumstances. The
*upreme ourt in $% 4!!:%&% Ro% V&. S%$ o6 A.P.,
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'008(3) JCC 18'3held that if it is sho(n that since the ver%inception of ma@ing the promise# the accused did not intend to
marr% her and the prosecutri$ e$tends her consent to have se$ual
intercourse (ith him# onl% on the strength of such
misrepresentation made to her# and thereb% forms a
misconception of fact that the accused (as definitel% going to
marr% her# it (ould amount to commission of rape.
3. In U2%> V&. S%$ o6 K%%%?% (%)before the
*upreme ourt# a friendship had developed bet(een the
prosecutri$ and the appellant. >hen the appellant proposed to
marr% her# the prosecutri$ told him that since the% belonged to
different castes# their marriage is not possible. In these
circumstances the *upreme ourt (as of the vie( that the
consent given b% the prosecutri$ to se$ual intercourse (ith aperson (ith (hom she (as deepl% in love on a promise of
marriage# can not be said to be given under a misconception of
fact. The court further held that for determining (hether consent
given b% the prosecutri$ (as voluntar% or under a misconception
of fact# no straight ;ac@et formula can be laid do(n but follo(ing
factors stand out,?
1. >here a girl (as of 1 %ears of age and had sufficient
intelligence to understand the significance and moral
Fualit% of the act she (as consenting to
!. *he (as conscious of the fact that her marriage (as
difficult on account of caste considerations.
3. It (as difficult to impute to the appellant @no(ledge the
prosecutri$ had consented in conseFuence of a
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misconception of fact arising from his promise and:. There (as no evidence to prove conclusivel% that the
appellant never intended to marr% the prosecutri$.
3. In the instant case also# the prosecutri$ (as !0 %ears
old in the %ear !006 (hen she started friendship (ith the accused
and hence a mature girl. *he (as (ell educated and doing a ;ob ofsecretarial and administrative nature (ith a reputed compan% of
+anglore. *he (as an independent lad% and had been residing on
rent alone in +anglore since the %ear !003. 2ence# I consider that
she (as intelligent enough to understand moral Fualit% and
conseFuences of her act and there (ere no chances of their being
misled b% an% assurance given to her b% the accused. There is no
evidence on record to sho( that she consented to se$ualintercourse (ith the accused onl% on the later&s promise of
marriage and other(ise# she (ould not have given her consent for
the same. In fact# there is evidence on record in the form of 8?
mails and internet chats bet(een the t(o '8$.G1) that prosecutri$
had been pestering and inducing the accused to have se$ual
intercourse (ith her.
:0. In vie( of the aforesaid discussion# I feel that the
prosecution has failed to prove that se$ual intercourse had ta@en
place bet(een the prosecutri$ and the accused and the consent of
the prosecutri$ to the same (as obtained b% the accused b% an%
misconception of fact. Thus the prosecution has failed to prove the
charges against the accused.
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:1. Therefore# the accused is liable to be acFuitted and ishereb% acFuitted.
Ao#