Full Text
HIGH COURT OF DELHI
Date of reserving
JUDGMENT
Date of Decision: 29th May, 2026 IN THE MATTER OF:
TAHIR ANSARI .....Appellant
Through: Mr. R.P. Pandey and Mr. Prakash Kumar, Advs.
Appellant-in-person (through V.C.).
Through: Mr. Satinder Singh Bawa, APP for State with SI Virender, PS Kamla
Market.
Mr. Vignaraj Pasayat, Advocate (DHCLSC) with Mr. Naman Aggarwal and Ms. Eishan, Advs. for victim.
1. Ashok Aggarwal, an elusive character in the entire episode, who spilled the beans for Tahir Ansari by reporting the proposed transaction to police where a young girl was to be sold for some nefarious purpose. Since the proposed transaction was to take place at the infamous G.B. Road, Delhi, within the jurisdiction of Police Station Kamla Market, therefore, the obvious inference was that the girl was to be thrown into flesh trade. However, Ashok Aggarwal, who seemingly posed himself to be a prospective buyer, informed the Beat Police Official HC Mahesh (PW-10) about Tahir Ansari and also pointed out to him. This led to the detention of the Appellant herein i.e. Tahir Ansari and the victim, both of whom were taken to Police Station Kamla Market and produced before the SHO Inspector Surinder Jeet Kaur (PW-12). The statement of the victim i.e. rukka (Ex.PW-2/A) led to the registration of FIR No. 39/2011 registered under Section 366, 372, 376 of Indian Penal Code (‘IPC’). The investigation led to filing of the chargesheet under the aforesaid sections.
2. After the compliance of Section 207 of Code of Criminal Procedure, 1973 (‘Cr.P.C.’), based upon the contents of the chargesheet, a formal charge was framed against Appellant Tahir Ansari under Section 376 IPC. Trial commenced as the Appellant pleaded not guilty to the charge framed and that led to the examination of 12 witnesses.
3. In compliance of Section 313 Cr.P.C., statement of the Accused was recorded, wherein the evidence coming against him was put to him so as to ascertain his version about it. Expectedly, the Appellant washed off his hands from the allegations and the evidence by asserting that the prosecutrix voluntarily accompanied him and what ever happened between two of them, was consensual. He did not opt to lead evidence in his defence. On conclusion of the arguments, the learned Additional Sessions Judge, FTC (Central), Delhi held the Appellant guilty under Section 376 IPC and awarded a sentence, whereby he was to undergo Rigorous Imprisonment (RI) for 07 years, in addition to it, pay a fine of Rs. 2,500/-, in default of which he was to undergo Simple Imprisonment (SI) for 03 months.
4. Against the backdrop of these facts and circumstances, the present appeal has emerged. However, before dwelling into the intricacies of the appeal and the arguments, the indispensable facts, precisely are as under.
5. The victim belongs to State of Jharkhand and she was brought to the city of Delhi in June, 2010 by one of her cousin’s namely Barka and she secured an employment for her, as house-help/maid in the area of Paschim Vihar in the house of one Smt. Poonam Kalra.
6. In the month of August, 2010, while the prosecutrix was trying to speak to her relatives in Jharkhand, a wrong number was dialled, which connected the Appellant herein with the prosecutrix. Thereafter, the Appellant started making regular calls and that’s how a kind of friendship developed between the prosecutrix and the Appellant.
7. The Appellant very quickly realised within a span of 15-20 days that the prosecutrix is the right person for him to marry and expressed his desire to the prosecutrix. The inducement was enough for the prosecutrix to leave her employment and she accompanied the Appellant after packing her belongings that too without informing her employer. He took the prosecutrix to his rented accommodation in Kapashera area of Delhi, where they started living as husband and wife.
8. Initial resistance of the prosecutrix to avoid from indulging into sexual relations were put off by the Appellant forcibly. He kept on having sexual relations with the prosecutrix under the promise of marriage, but when it came to formalise the marriage, he kept on avoiding on one pretext or the other. That’s how some months passed away, during which the Appellant and the prosecutrix have cordial relationship. However, one fine day, the prosecutrix heard some sort of transaction involving Rs. 50,000/-, between the Appellant and some unknown person but she did not pay much attention to it, little realising that it was she who was being transacted to be thrown in flesh trade as Appellant was striking a deal to sell her. The truth soon dawned upon the victim on 12.05.2011 when the Appellant took her to an unknown place in a TSR. Some days prior to that her photographs were taken in a Photo Studio and it was told to her that the photographs would be required for the purpose of court marriage. The same was the answer qua the telephonic talk with regard to the amount of Rs. 50,000/-. The Appellant informed that it was about the expenses of the court marriage. The prosecutrix, on reaching in the area, grew suspicious and enquired about the place from the TSR driver, who told that this is the infamous G.B. Road area of Delhi where prostitution is being carried out. This trepidated the victim and before she could react she saw that the Appellant was apprehended by the police. Thereafter, she too was taken to the Police Station along with the Appellant, where her statement was recorded. She narrated the entire details, as reflected in Ex.PW-2/A.
9. It is contended on behalf of the Appellant that he has been falsely implicated in this case, inasmuch as everything was consensual and the prosecutrix being major, therefore, the Appellant cannot be held responsible for any kind of offence. Had it been so, that she was forcefully detained or was sexually exploited, she had enough time and opportunities to escape, or to bring it to the knowledge of the police or neighbours. She despite having all the opportunities did not make any complaint to anyone. It is further submitted that the prime witness of the incident, apart from the prosecutrix, that is, Ashok Aggarwal, who was instrumental in getting the Appellant arrested, has not been cited as a witness Police. There is nothing in the MLC, which may reflect that the prosecutrix have been subjected to any forceful sexual intercourse.
10. Another limb of the argument put forth on behalf of the Appellant is that the prosecutrix, since she wanted, came back to live with the Appellant after being allegedly left at railway station. The prosecutrix has a grudge that Appellant allegedly sold her mobile handset on the pretext of buying train tickets and thereafter, vanished from the railway station, but she instead of severing the ties with Appellant, or reporting the matter to police, came back to the Appellant and joined him voluntarily. This is indicative of the fact that there was neither any element of force, deception or enticement rather it was voluntary and consensual that she moved and lived with the Appellant.
11. As and when two views are possible in a given set of facts and circumstances the one favouring the accused should be adopted, contended lastly by the counsel for the Appellant.
12. In addition to the aforesaid contentions, it is also submitted on behalf of the Appellant that out of the sentence of 07 years awarded to him, he has already undergone 01 year 04 months in custody and keeping in view the fact that everything was consensual and that he has an old age ailing father and three younger brothers, who are all dependent upon the Appellant, therefore, he may be considered for release on the basis of period of custody already undergone by him.
13. Learned APP for the State, assisted by learned counsel for the prosecutrix came up with the plea that the Appellant was having evil intentions from the very beginning as he lured the victim and enticed her to leave her employer and employment to accompany him. His sole intention was to take advantage of the prosecutrix. He, while sexually exploiting her for months together, on the pretext of marriage, which did not come forward to formalise it. Ultimately, in order to get rid of the prosecutrix, he conceived another evil design of selling her to some brothel in the notorious and infamous area of Delhi, where prostitution is rampant i.e. G.B. Road, but for the fact that the proposed customer of this transaction, the so called Ashok Aggarwal, proved a nemesis for him.
14. It is thus, contended on behalf of the prosecution that the impugned Judgment is based upon the evidence, which unequivocally points out towards the guilt of the Accused and, therefore, the appeal is liable to be dismissed and for that matter, even the sentence is also in consonance with the act of the Appellant being commensurate and that too is required to be maintained.
15. The intentions of the Appellant were malafide, from the very inception as he was quick enough to realise the naivety and vulnerability of the prosecutrix and offered to marry her within 20 days of telephonic interaction. Evidently, it was too short a period to reach to such a conclusion as this is not a case of love at first sight since they had no occasion to be in front of each other physically. Presuming that he had bonafide intention of getting married, then he has nothing to explain as to what prevented him from marrying the prosecutrix in those 08-10 months during which they were together. He, however, constantly indulged into sexual relations with the prosecutrix and kept exploiting her. It was nothing but taking the prosecutrix for a ride on the false promise of marriage and when his lust was satisfied, he, in order to get rid of the prosecutrix, instead of breaking up the relationship or leaving the victim, transacted about the prosecutrix to be sold to some brothel keeper or other individual against consideration of some money. All these are enough to describe as to what kind of person the Appellant is.
16. The prosecutrix was so foolish or immature or gullible that despite the fact that the Appellant ditched her and left her at Railway Station that too after selling her mobile handset purportedly to arrange money for the ticekts, the prosecutrix again fell into the trap of the Appellant. She again came back to the Appellant. The Appellant, in order to finally get rid of the prosecutrix, attempted to sell her. Evidence to that effect is overwhelmingly present in the shape of the testimony of the PW-2 victim and the police official from the area of P.S. Kamla Market, more particularly HC Mahesh, examined as PW-10.
17. A kind of corroborative evidence is there in the shape of PW-1 Pawan Kumar, who has appeared and stated that the Appellant had taken a room in property no. 47 in village Kapashera and was living with his wife i.e. the prosecutrix. He has clearly identified the Appellant as the said tenant Tahir. This adds to the chain of events, where the Appellant took the prosecutrix from the place of her employer to his rented accommodation where they lived together posing as husband and wife, though they were not married. It is this place where, according to the prosecutrix PW-2, she was subjected to sexual intercourse by the Appellant, initially forcibly.
18. The victim was examined at Lok Nayak Jai Prakash Narayan Hospital by Dr. Than Singh, under the supervision of Dr. Ravinder Kumar, who has been examined as PW-3. The MLC prepared by Dr. Than Singh is Ex.PW3/A. The MLC further substantiates, wherein the alleged history, the prosecutrix has stated that she was in regular sexual relationship with a man for the last about 08 months on false promise of marriage. She has not given any history of domestic violence or any other kind of violence. No injuries were found on the person of prosecutrix. The MLC Ex.PW3/A further reflects medical abortion of a foetus of two months of gestation, however, this has not been brought up by anyone, nor it has been touched by the learned Trial Court. Nevertheless, the circumstances reflect that it was the result of the sexual relationship between the Appellant and the prosecutrix. Thus, corroboration to the testimony of the prosecutrix is there, which fortifies the case against the Appellant. And, in any case, there appears no reason to disbelieve the victim.
19. The defence put forth on behalf of the Appellant is that the relation was consensual, as has been otherwise stated in the statement of the Accused recorded under Section 313 Cr.P.C. and for that matter, even the prosecutrix has also stated about it that they had developed consensual relationship, but it was under the promise of marriage, which did not take place. Additionally it has been stated that the Appellant had, initially for 2 or 3 days, forcefully raped her. Thereafter, the Appellant seems to have convinced the prosecutrix, who too fell into the trap and submitted herself to sexual exploitation of the Appellant.
20. The stand of the prosecutrix is consistent as far as promise of marriage is concerned. Even otherwise from the circumstances, it appears that there could not have been any other reason except that the Appellant was able to convince the prosecutrix through his sweet talks to voluntary surrender to the lustful desires of the Appellant, whereas he actually did not want to marry her. Had it not been the case, the Appellant would have otherwise got rid of the prosecutrix instead of trying to ruin her life by selling her for the purpose of prostitution.
21. Presence and arrest of the Appellant from the G.B Road area of Police Station Kamla Market, under these circumstances is an evidence unto itself about the proposed deal, notwithstanding the fact that the so-called Ashok Aggarwal with whom the Appellant was talking and purportedly to sell the victim, has not been joined as a witness.
22. The circumstances are adversely stacked against the Appellant and in the absence of any plausible explanation, there is no reason to disbelieve the prosecution’s case. Right from the inception, the intentions of the Appellant were not aboveboard. It is highly unlikely that within a span of two weeks, on the basis of only telephonic conversations only, the Appellant was able to make up his mind to marry the prosecutrix and for that matter, the prosecutrix also agreed. It was the foundation on the basis of which the Appellant has been able to entice away the prosecutrix, who despite being major, was naive enough to believe a total stranger in an unknown city and agreed to accompany him. The way prosecutrix left her employer’s house and employment, with bag and baggage, clearly reflects as to what was going on in her mind. It could not have been one sided as the Appellant had sowed the seeds, which germinated into this behaviour. It could be nothing but the promise of marriage and good life to a young girl.
23. The prosecutrix wanted to start a life with the Appellant and marriage with the Appellant was her desire, ignited by the Appellant and that is the reason why the initial attempts of the Appellant for having sexual relations with the prosecutrix were resisted by her, but somehow, as appears from the testimony of the prosecutrix, the Appellant was able to force himself upon her or she succumbed to the pressure. Subsequently, the prosecutrix either acquiesced to the acts of the Appellant and submitted herself or the Appellant was able to convince her in such a manner about their proposed marriage and had his way. However, no explanation is forthcoming as to why, despite staying together for about eight months or so, the Appellant and the prosecutrix did not marry.
24. In the absence of any plausible reason or explanation from the side of the Appellant and the subsequent conduct, fortifies the evil intentions of the Appellant. There was no occasion with him to get the photographs of the prosecutrix that too not together but individually. If two people are in some kind of amorous relationship, then photographs are not uncommon, what is uncommon is that they are not together in the photographs. The telephonic conversation of the Appellant with some unknown person where reference of Rs. 50,000/- came and was heard by the prosecutrix, but it has been warded off by the Appellant. He told the prosecutrix that he was talking about the expenses involved in the court marriage and for that matter, same explanation was assigned to the individual photograph of the prosecutrix. A barely literate lovelorn female of about 19 years of age from a remote tribal area of Jharkhand living alone in the city, was gullible enough to believe the Appellant.
25. However, her destiny had something else in store and that is why, she could be saved from falling into the clutches of the persons involved in flesh trade. It has come on record that the Appellant and the prosecutrix were residing in Kapashera. In such circumstances, what was the reason and occasion with the Appellant to take the prosecutrix to the G.B. Road, which was probably, and is still notorious for prostitution. There was no occasion with the Appellant to leave the prosecutrix in the TSR and contact the so called Ashok Aggarwal and what for, he has not explained. It seems that either the Appellant was already under a watch by the police or Ashok Aggarwal seems to be a police informer, a front or a stooge and that seems to be the reason why, in order to protect the identity of the so called Ashok Aggarwal, he has not been made a witness. Although, it is only a kind of conjecture or surmise qua him. However, the possibility cannot be ruled out for the simple reason that the notoriety of the area and the kind of infamy, earned on account of prostitution, must have compelled the police officers to devise and employ all kinds of measures in order to prevent, in the first place, and to protect and rescue the gullible victims forced into the sex trade.
26. In any case, the Appellant has no explanation about his presence there with the prosecutrix, leave alone any reasonable and cogent reason, the prosecutrix getting photographed alone and the telephonic talk of Rs. 50,000/- gives further credence to the deposition of the prosecutrix, that she was about to be thrown into the nadir world of prostitution, apart from being raped..
27. In view of these facts and circumstances, the element of consent which indeed was there at some point of time between the Appellant and the prosecutrix, gets tarnished and bound to get effaced. In any case, the initial 2-3 days, after the prosecutrix moved with the Appellant, were the days when the Appellant had forced himself upon the prosecutrix. He committed rape upon the prosecutrix by having intercourse against her will and without her consent. The acquiescence, if any, qua those 2-3 days, was on the pretext of marriage, which the Appellant kept delaying and deferring on one or the other guise. The consent, in any case, was not a free and voluntary consent rather it was under a kind of deception. Appellant had more than sufficient time to translate his oral promise in to a reality, but he kept on deferring for no apparent reason. The prosecutrix, after being left at the Railway Station by the Appellant, again came back to him. What prevented him to perform the marriage/Nikah, which incidentally, does not require any elaborate arrangements except witnesses and Quazi/Religion person competent to perform Nikah. As such, the plea of consensual sex gets vitiated and no longer remains a free and fair consent as there was no consensus ad idem. In this context, reference can be made to the judgment in case titled as State of Uttar Pradesh Vs. Naushad, AIR 2014 SC 384 where it is observed in the following words. “If consent is given by the prosecutrix under a misconception of fact, it is vitiated. Accused committed sexual intercourse with the prosecutrix by giving false assurance that he would marry her, after she got pregnant, he refused to do so. From this it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relationship with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtain under a misconception of fact as defined under Section 90 in the Indian Penal Code.” The observations made in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 18, can be looked into:
18. Section 114-A of the Evidence Act, 1872 (hereinafter referred to as “the 1872 Act”) provides, that if the prosecutrix deposes that she did not give her consent, then the court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the 1872 Act be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, along with the provisions of Section 90 IPC. Section 90 IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
19. This Court considered the issue involved herein at length in Uday v. State of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46: 2003 SCC (Cri) 775: AIR 2003 SC 1639], Deelip Singh v. State of Bihar [Deelip Singh v. State of Bihar, (2005) 1 SCC 88: 2005 SCC (Cri) 253 AIR 2005 SC 203], Yedla Srinivasa Rao v. State of A.P. [(2006) 11 SCC 615: (2007) 1 SCC (Cri) 557] and Pradeep Kumar v. State of Bihar Pradeep Kumar v. State of Bihar, (2007) 7 SCC 413: (2007) 3 SCC (Cri) 407: AIR 2007 SC 3059] and came to the conclusion that in the event that the accused‟s promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
21. 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 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.
22. In Deelip Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88: 2005 SCC (Cri) 253: AIR 2005 SC 203] it has been observed as under: (SCC p. 99, para 19) “19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology.”
23. This Court, while deciding Pradeep Kumar [Pradeep Kumar v. State of Bihar, (2007) 7 SCC 413: (2007) 3 SCC (Cri) 407: AIR 2007 SC 3059], placed reliance upon the judgment of the Madras High Court in N. Jaladu, In re [ILR (1913) 36 Mad 453], wherein it has been observed: (Pradeep Kumar case [Pradeep Kumarv. State of Bihar, (2007) 7 SCC 413: (2007) 3 SCC (Cri) 407: AIR
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her. Reference in this context can also be made to Sonu V. State of U.P. (20210 18 SCC 517 and Pramod Suryabhan Pawar V. State of Maharasthra, (2019) 9 SCC 608. It can thus be informed that the consent becomes immaterial once it is found to be vitiated by fraud, deception, misrepresentation or similar other factor. The case in hand seems to be one where consent of the prosecutrix was not free and voluntary at least on initial 2-3 days when she was raped. Subsequent to that was on the false promise of marriage, which again is no consent.
28. In such circumstances, the conclusion reached by the learned Trial Court, cannot be faulted, rather the Appellant should have been charged and tried for an offence involving human trafficking also. However, no such plea has been put forth, nor the chargesheet contains any such allegation and no appeal has been preferred by the State either. As a result, the appeal against conviction deserves to be and stands declined.
29. A feeble and meek submission has been put forth on behalf of the Appellant, where it is projected that he is the sole bread earner of the family including his younger brother and old father and it was sought that the period of custody undergone by him during the trial or otherwise, may be considered as sufficient punishment. The Appellant has been sentenced to undergo Rigorous Imprisonment for a period of 07 years vide impugned Order on Sentence dated 31.03.2012, but then, given the facts of the case in its entirety, there appears no reason at all to give any indulgence to this plea as the Appellant not only took advantage of the naivety and gullibility of a poor tribal girl and raped her against her wishes and under a false promise of marriage, but even attempted to sell her, where the victim was most likely to be forced into prostitution. As a result, the sentence is also upheld and maintained.
30. In view of the foregoing discussion, the appeal in its entirety stands dismissed. The Appellant is called upon to surrender forthwith to undergo the remaining sentence. He shall be entitled to the benefit of set off under Section 428 Cr.P.C.
31. Appeal stands disposed of accordingly.
32. Copy of the judgment be transmitted to the learned Trial Court and the Prison Authorities for information and necessary compliance.
VIMAL KUMAR YADAV, J MAY 29, 2026/akc/ps