Written Argument Anil Kumar-converted

1 IN THE COURT OF SH. SANJAY KHANAGWAL, ADDITIONAL SESSION JUDGE, PATIALA HOUSE COURT, NEW DELHI SC NO. 77/2018 IN THE MATTER OF: STATE

VERSUS

ANIL KUMAR FIR NO. 716/17 P.S-VASANT KUNJ(N) U/S-376 IPC NDOH-25.08.2020

WRITTEN ARGUMENT ON BEHALF OF ACCUSED NAMELY ANIL KUMAR IN CASE TITLED “ STATE VS ANIL KUMAR” BEARING FIR NO. 716/2017.

BRIEF FACT OF THE CASE:The accused and the prosecutrix were working at Income Tax Bhawan, ITO, CR Building, New Delhi as a data entry operator. During their job in the office, they became friend and gradually they started loving each other and also started meeting outside the office. They established physical relationship with their consent. The accused wants to marry the prosecutrix and also spoke to the parents of the prosecutrix for their marriage but they denied of the said marriage stating of difference of caste. On 24.08.2017, they met at the hotel City Lite, Mahipalpur for the last time and they broke up and it was decided that both of them shall marry according to the choice of their family members. Accordingly, they separated however they use to be in touch with each other on phone. The family of the accused managed to find a girl for the accused and marriage was scheduled. On coming to know about the marriage of the accused with some other girl, the prosecutrix became unsecure thinking about her life. She started contacting the accused and telling him to get married to her. The

2 accused once again tried to speak to the parents of the prosecutrix, who again denied to marry her daughter to the accused. The allegation of the prosecutrix is that the accused had established physical relationship with the prosecutrix on the pretext of marriage. The charge u/s 376 IPC has been framed against the accused. DATES AND EVENTS 13.12.2017

A complaint was filed by the prosecutrix alleging rape u/s 376 IPC.

13.12.2017

A FIR under section 376 IPC was registered against the accused.

22.12.2017

The accused was arrested

28.02.2018

The charge sheet was filed.

11.04.2018

The accused was granted bail.

01.06.2018

The examination of the witnesses started.

27.02.2019

The final witness of the case was examined.

EVIDENCES:

Only three witnesses were examined in the court,

the details of which are as follows. PW1- (The Prosecutrix herself) The prosecutix has been examined in chief and cross-examined on dated 01.06.2018 and 2.06.2018. PW2- The father of the prosecutrix has been examined in chief and cross examined on 10.10.2018. PW3- Manisha kumari, IO of the case has been examined in chief on 11.10.2018 and was cross examined on 27.02.2019.

EVALUATING THE EVIDENCE OF THE WITNESSES. PW1-THE PROSECUTRIX. 1. The prosecutrix in her examination in chief has admitted that fact that she was in love with the accused for a very

3 long time and that both of them wanted to get married to each other. (Page No. 1, Para No.-2 and 3). The extract of the same is: “In May 2009, me and the accused became friends and gradually our friendship deepened and we started liking each other and also started meeting each other outside office” “In the year 2011, the accused told me that he wants to marry me” 2. It is admitted by the prosecutrix in her cross examination dated 01.06.2018, that she was about 20-21 years old when she met with the accused. It was also admitted that she use to go to the City Lite, Hotel, Mahipalpur with her consent. (Page No. 5, Last Para). The extract of the same is: “It is correct that when I had met the accused, my age was about 20-21 years. It is correct that during our relationship, I used to go to the City Lite Hotel, Mahipalpur with my consent.” 3. The prosecutrix in her cross examination dated 02.06.2018 has

also

admitted

the

fact

that

the

accused

had

approached her father for the proposal of marriage with the prosecutrix but the father of the prosecutrix denied of marriage citing the caste difference between them. (Page No. 2, Para No. 1 dated) “It is correct that on my asking the accused had come to my house to speak to my parents about our marriage”. 4. The prosecutrix in her chief examination has also admitted the fact that her family member did not approve of her decision of marrying the accused due to caste difference. (Page No. 2 Para No.1). The extract of the same is:

4 “In the year 2011-2012, I did not recall the exact month, but I had told my family members that I liked the accused and want to marry him. My family members however did not approve of my decision because of the difference of the case between our family and that of the accused.” 5. The prosecutrix has said in her cross-examination dated 02.06.2018 that the accused never used any force on her for sexual intercourse. (Page No. 3, para No. 3). The extract of the same is: “It is correct that during our physical relation the accused did not ever use force upon me.” 6. The allegation of prosecutrix in the FIR and complaint dated 13.12.2017 that the accused had physical relations with her for the last time on 16.11.2017. (on the last line of the complaint and on Page No. 2 of FIR). However no such incident

was

ever

taken

place

on

16.11.2017,

the

prosecutrix and accused had visited the Hotel City Lite on 22.07.2017 and 24.08.2017 and they had not visited the said hotel on 16.11.2017 as per the records of Hotel collected

during

investigation.

Therefore

the

whole

allegation about rape is false and fabricated. The extract of the same is: “Mere

saath

Anil

Kumar

ne

last

time

physical

relationship 16.11.2017 ko banaya tha, Mahipalpur ke City Hotel me banaya tha”.

7. It is admitted by the prosecutrix in her cross examination that she used to sign on the register of the hotel an on the copy of her id card voluntarily whenever they use to visit hotel. (Page No.4, Para No.-4).

5 “whenever, the copy of my i-card used to be deposited in the hotel City Lite, I used to also put my signatures on the register of the hotel and on the copy of my icard but never used to put the date”. 8. The prosecutrix has admitted that she had taken Rs. 30,000/- from the accused for purchasing a scooty. (Page No. 3 Para No. 2) “It is correct that I own a scooty. It is correct that at the time of purchase of the scooty I had taken Rs. 30,000/- from the accused for the said purchase.

PW2- FATHER OF THE PROSECUTIRX. 1. The father of the prosecutrix in his cross-examination dated 10.10.2018 has admitted the fact that the accused came to him with the proposal of marrying the prosecutrix but he denied

the proposal of marriage citing caste

difference. (Page No. 1 Para No. 3). The extract of the same is: “I am not sure whether it was end of August 2017 or not but it is correct that the accused prior to 03.12.2017 had come to our house to ask for the hand of the prosecutrix in marriage. I had refused at that time because of the cast differences between our families.”

PW-3-MANISHA KUMARI, IO OF THE CASE. 1. The Investigation Officer in her cross-examination dated 27.02.2019 has confirmed that fact that only two entries were mentioned in the said record i.e dated 22.07.2017 and 24.08.2017. No, record as per the alleged dated of incident i.e 16.11.2017 was found in the hotel records. (Page No. 1 Para no. 2). The extract of the same is:

6 “It is correct that the hotel Manager had provided the entire record pertaining to the prosecutrix and the accused. Only two entries were mentioned in the said record dated 22.07.2017 and 24.08.2017.” 2. The IO of the case in her cross-examination dated 27.02.2019 has admitted the fact, that the prosecutrix had added the last line in her written complaint filed before the Police Station, Vasant Kunj.(Page 4 Para 1). The extract of the same is: “It is correct that the last line in the complaint of the prosecutrix was added later on and that is why it is in in different ink”

DEFENCE: 1. Mens Rea is missing in this case. The prosecution has failed to show mens rea of the accused in this case. The accused was always ready to marry the prosecutrix but it was due to the denial by the father of the prosecutrix the marriage between the two was not possible. There was no kind of force or allurement by the accused for establishing physical relationship, infact the prosecutrix and accused were in deep love with each other and there was consent from

the

side

of

the

prosecutrix

for

any

physical

relationship. 2. There was a delay of 27 days in filing of complaint by the prosecutrix for alleged rape. As per the prosecutrix the alleged rape was happened on 16.11.2017, however the complaint was filed on 13.12.2017. 3. The prosecutrix herself had denied to conduct her internal medical examination and from the medical report attached with

the

chargesheet,

no

factum

of

recent

sexual

intercourse in the past emanates. Also, no external injury

7 was detected on the body of the victim and prima facie look at the medical reports suggests that there was no forcible sexual intercourse. Thus, there is no scientific evidence available with the prosecution against the accused person. 4. Similarly, the medical report suggests that the victim-girl was not pregnant at the time of her medical examination nor previous abortion is clear from the report. JUDGMENT RELIED UPON: A. In Uday vs. State of Karnataka reported as (2003) SCC, the Apex court held: “24. Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact. 25. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to

8 gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 26. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from membersof both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely

9 place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired in. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.” B. In the case of Deepak Gulati v. State of Haryan(20.05.2013SC): MANU/SC/0546/2013, the court observed that: “Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was

10 given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.” C. In Calcutta High Court in Jayanti Rani Panda vs. State of West Bengal and Ors, 1984 Cri.L.J. 1535(Calcutta HC) has held that the consent of full-grown girl to the act of sexual intercourse on a promise of marriage cannot be treated as an act induced by misconception of fact.

D. In

the

recent

case

of Anurag

Soni

vs.

State

of

Chhattisgarh, 2019 (6) SCALE 211, the Apex Court, has attempted to make a distinction between a promise which is unfulfilled and a promise which is false from the very beginning.The natural corollary that flows from it is that if a man can prove that he intended to marry the woman but changed his mind later, then it's not rape. It's only considered rape if it's established that he had dubious intentions from the beginning of the relationship. E. In Tilak Raj vs State of Himachal Pradesh reported in AIR 206, The Hon’ble Apex Court has held as under “We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short “the IPC”). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the

11 prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.” The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicate that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the Appellant seems to be consensual in nature. The trial court has rightly held thus: “23. If the story set up by the prosecutrix herself in the court is to be believed, it does come to the fore that the two were in a relationship and she well knew that the accused was duping her throughout. Per the prosecutrix, she had not succumbed to the proposal of the accused. Having allowed access to the accused to her residential quarter, so much so, even having allowed him to stay overnight, she knew the likely outcome of her reaction. Seeing the age of the prosecutrix which is around 40 years, it can be easily inferred that she knew what could be the consequences of allowing a male friend into her bed room at night. 24. The entire circumstances discussed above and which have come to the fore from the testimony of none else but the prosecutrix, it cannot be said that the sexual intercourse was without her consent. The act seems to be consensual in nature.” F.

In

Dr. Dhruvaram Murlidhar Sonar

Vs

State

of

Maharashtra, Supreme Court, Criminal Appeal No. 1443 of 2018 it was observed; “20.Thus,

there

is

a clear

distinction

between

rape

and

consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between

12 mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. 21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to

different

communities.

It

is

also

alleged

that

the

accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her

13 case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.” SUBMISSIONS: 1. For the sake of arguments even if the entire allegations made by the prosecurtix are accepted as true, then it would clear that she was a consenting party, a 29 years old, graduate working lady, therefore well versed in the way of life, yet she claimed that she succumbed to the promise of marriage made by the applicant and continued to submit sexual intercourse of a considerable period. In these circumstances it cannot be said that the consent given by the prosecutrix to sexual intercourse was based on misconception of facts. Therefore no offence under section 376 IPC is made out. The act of the accused doesn’t not fall in any of the six categories mentioned in the definition of Rape. Section 375 IPC says Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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.

14 (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 sixteen years of age. 2. The accused was never been involved in any manner in any criminal case. Assuming for the sake of argument but not conceding, the victim is a major and a consenting party in the sexual relationship, if at all her version of a love relationship was existing for the last couple of years, the offense under Section 376 of I.P.C. cannot be made out. 3. As

to

the

allegation

of

administering

medicines

for

termination of pregnancy is out and out a false allegation and he has never done so. The prosecution has failed to show even a single piece of evidence in support of the said allegation. 4. The victim in the present case was a major girl, with a sound mind and there seems to be no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. Through ANURAG RITA, IMTIYAZ HUSSAIN & SALMA Counsels for the Accused Chamber No. 961, Patiala House Court, Delhi, Delhi Dated: 18.07.2020

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