Delhi High Court: In a case wherein a man was accused of raping a married woman for 12 years and having two children with her, a Single Judge Bench of Swarana Kanta Sharma, J.* upheld the Trial Court’s Order of discharging the man. The Court further opined that the consent of the woman was implied as well as expressed which had not been coerced or misguided or obtained through deceit since the woman for 12 long years maintained sexual relationship with the man.
Background
In the present case, a FIR was registered on the complaint of prosecutrix who had alleged that she got married to Mr. Y in 2003 and in 2005, she became friends with the accused. It was alleged that in 2005, the accused had come to the factory where the prosecutrix used to work and he had called her out and thereafter, had offered her a glass of juice, after consuming which, she had become unconscious, and the accused had taken her to a room in a rickshaw. Upon gaining consciousness, the prosecutrix realized that the accused had established physical relations with her. It was further alleged that the accused had also threatened to defame the prosecutrix and later had shown some obscene photographs on a mobile phone and under threat, had taken her to a railway quarter and threatened to show these photographs to her family members. Thereafter, the accused had compelled her to establish a physical relationship with him and his friends. The prosecutrix narrated the incident to her husband and then a complaint was filed with the police, leading to registration of the FIR.
During the investigation, the statement of prosecutrix under Section 164 of Criminal Procedure Code, 1973 was recorded wherein she also stated that her son and daughter were born from the physical relationship between her and the accused. Thereafter, a DNA test was conducted, and the report revealed that the DNA profile of the children matched with the DNA profile of the accused and prosecutrix. The Trial Court passed an Order in 2018 whereby it discharged the accused.
Analysis, Law, and Decision
The issue before the Court was “whether the facts of the case make out a ‘prima facie’ case of rape against the accused?”.
The Court opined that after 12 years of the incident, the juice shop owner might not have been found by the police and thereafter neither there was any pointing out of the shop, the exact place or location of the shop or a person who might have been the best witness to have seen the kidnapping. The Court noted that the prosecutrix herself submitted that the glass of juice was offered to her on the main road and she was made to sit in the rickshaw in the broad day light, where she became unconscious in the rickshaw and when she had regained consciousness, she had realized that physical relations had been made by the accused with her. Thus, the Court opined that prima facie, the very statement itself would indicate that it was difficult to believe her assertions since during day time on the main road, that too at one of the busiest places in Delhi, she was administered some intoxicating substance in a glass of juice at the juice shop itself and was thereafter taken in a rickshaw where she became unconscious. Someone taking a fully grown woman in unconscious condition in a rickshaw in broad day light to another busiest place of Delhi, that is, railway quarters, raised questions against her story.
The Court noted that the prosecutrix herself had stated that she was shown the photographs and videos in a white oval mobile phone which she had not seen in 2005 and that neither she had seen it before the day she was shown the mobile phone, nor she had seen the phone thereafter in possession of the accused. Thus, the Court opined that “it was unclear as to how the consent of the prosecutrix was obtained under fear of such pictures or videos”. The Court noted that the prosecutrix and accused, at the time of alleged first incident till the last incident, had been married to different partners and both had been in sexual association since 2005, which took place frequently at the house of the accused against her consent. The Court opined that that while both were living with their legally married partners, they not only were in relationship which now the prosecutrix alleged to be against her will, it further seemed suspicious because she delivered two children who have been fathered by the accused. The Court further noted that the prosecutrix’s family was not aware about the parenting of the children till the DNA test report was received in this Court. Thus, the Court opined that it was not clear as to why she did not inform the family or any other authority that she was being sexually exploited or raped for 12 long years against her consent and she also chose to deliver children fathered by the accused.
The Court opined that the conduct of the prosecutrix of not reporting the matter to anyone, and both accused and prosecutrix producing two children from their union, and their conduct of staying with their own spouses in the meantime when adultery was still a criminal offence, raised question about their own conduct to an extent.
The Court relied on Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, wherein the Supreme Court held that “consent might be express or implied, coerced or misguided, obtained willingly or through deceit. Consent was an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side”. Thus, the Court opined that the consent of a woman with respect to Section 375 of Penal Code, 1860 (“IPC”) had to be active and reasoned deliberation towards sexual intercourse. The Court took note of the following facts to establish whether the consent was obtained by fear of defamation which primarily arose due to the alleged photographs and video being in the possession of the accused:
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There was continuous sexual relationship between the prosecutrix and accused for 12 long years, while both were married to different partners, and the relationship between the parties continued during the subsistence of their respective marriages.
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There was no evidence of the existence of any inappropriate photograph, video, or threat apparent from the record or any mobile phone in which such photographs or videos could have been recorded.
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There was no evidence to support any allegation of administration of intoxicating substance in broad day light in a heavily populated area, after a lapse of 12 years.
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It was not the case of the prosecutrix that she lacked capacity to inform the authorities or even her family about alleged sexual exploitation by the accused.
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The choice and consent of the prosecutrix herself to give birth to the children fathered by the accused, without a whisper of complaint to anyone.
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The prosecutrix was not confined and had remained free throughout to live with her family including her husband, visiting any place, attending to her work, and even visiting the doctor for the purpose of giving birth to the children without there being any threat or fear from the accused.
Thus, the Court opined that “it would be against the jurisprudence of sexual consent to hold that only based on one single sentence, charge ought to be framed while ignoring the consent for 12 long years between the parties and considering the facts, circumstances and conduct of the parties”. The Court further opined that “the consent of the prosecutrix was implied as well as expressed which had not been coerced or misguided or obtained through deceit since the prosecutrix for 12 long years maintained sexual relationship with him”.
The Court opined that “the courts had to ensure that the right of fair trial to the complainant and rights of the accused of being protected from mala fide trial were taken care of in the Court’s crucial endeavor to ensure equality before law”. Thus, the Court held that “it could not be said that even prima facie, by any stretch of imagination, that the prosecutrix had given her consent for sexual relationship with the accused under any misconception of fact or any fear of injury, to even hold that a prima facie case was made out within the meaning of Section 375 of IPC for framing charge against the accused”. The Court held that the Trial Court’s Order suffered from no irregularity, illegality, impropriety, or perversity.
[State v. Sudershan Kumar, 2023 SCC OnLine Del 1647, decided on 20-3-2023]
Advocates who appeared in this case:
For the Petitioner: APP Naresh Chahar;
For the Respondent: Advocate Yogesh Swaroop.
*Judgment authored by: Justice Swarana Kanta Sharma