Chhotey Lal v. The State

1. The present appeal is filed on behalf of the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the “CrPC”) against the judgment dated 09th January, 2008 (hereinafter referred to as the “impugned judgement”) and against the Order-on-Sentence dated 10th January, 2009 (hereinafter referred to as the “impugned order on sentence”) passed by the court of Additional Sessions Judge, Karkardooma Courts, Delhi (hereinafter referred to as the “Trial Court”) in Sessions Case bearing No. 118/2005 arising out of the FIR bearing No. 361/2004 registered at Police Station - Khajuri Khas.

2. The appellant vide the impugned judgement was held guilty for committing the offence punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”).The appellant vide the impugned order on sentence dated 10th January, 2008 was sentenced to undergo Rigorous Imprisonment for a period of 7 years along with a fine of ₹1,000/-, and in default of payment of fine, convict was sentenced to undergo Simple Imprisonment for a period of ten days.

3. Briefly stated, the prosecution’s case as reflected from the chargesheet is that the prosecutrix, aged about 18-19 years, was residing with her parents at Sadat Pur Extension, Delhi, where her father, Shyam Bihari Pandey (PW[4]), was running an STD booth. The prosecutrix used to sit at the shop and was acquainted with the appellant - Chhotey Lal, who lived in the same locality and frequently visited the booth. On 2nd September 2004, at about 10:40 PM, the prosecutrix left her house and did not return. Simultaneously, the appellant was also found missing from his residence. On 11th September, 2004, PW-4 lodged a complaint with the police naming the appellant, pursuant to which the FIR was registered at Police Station, Khajuri Khas under Sections 366 and 376 of IPC. The prosecution case is that the appellant enticed the prosecutrix and took her to various places including Balaji, Jaipur, Sonepat, Chandigarh and Kangra (Himachal Pradesh), where he established sexual relations with her repeatedly. It is alleged that the prosecutrix accompanied him under fear, as he threatened to kill her brother, in case she raised an alarm and also on the false promise of marriage. The prosecutrix remained with the appellant for nearly six months and assisted him in his cane furniture work at Kangra. Later, she discovered that the appellant was already married with six children. On 5th March, 2005, the appellant along with the prosecutrix was apprehended at Sarai Kale Khan ISBT, Delhi by the police at the instance of PW-2, Satya Prakash, uncle of the prosecutrix. During the course of investigation, the prosecutrix had been medically examined. Her statement under Section 164 of CrPC which is Ex PW-3/A, has been recorded before the learned Magistrate. The appellant was thereafter arrested and examined medically.

4. After completion of investigation, the chargesheet was filed under Sections 365/366/376 IPC in the court. Charge under Sections 366/376 IPC was framed against the appellant on the allegations that on 02nd September, 2004, the appellant kidnapped the prosecutrix for the purpose of illicit intercourse with her and on and after 02nd September, 2004, the appellant had committed rape with the prosecutrix at different places, to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case, examined 11 witnesses. The statement of the appellant was recorded under Section 313 of the CrPC, wherein the appellant had denied incriminating evidences and pleaded innocence and claimed false implication. The trial court, after appreciating the evidence, acquitted the appellant of the charge under Section 366 IPC but convicted him under Section 376 IPC. Being aggrieved and dissatisfied, the present appeal has been preferred by the appellant.

5. Learned Amicus Curiae for the appellant has argued that the Trial Court has passed the impugned judgement on the basis of surmises and conjectures, contrary to the facts and evidence on record. There are material contradictions in the testimony of the prosecutrix which render the prosecution case doubtful. The prosecutrix was major at the time of alleged incident and has accompanied the appellant with free consent. The prosecutrix was well aware that the appellant was a married man and therefore the allegation of physical relations on the basis of a false promise to marry cannot be sustained in law, as it does not amount to a misconception of fact within the meaning of Section 90 IPC. The physical relations between the parties were consensual. The prosecution has failed to prove its case beyond reasonable doubt. On these grounds, it is prayed that the impugned judgment be set aside and the appellant be acquitted.

6. The learned APP for the State and the learned Counsel for the prosecutrix have argued that the trial court has passed the impugned judgment after considering the evidences on record. The evidences produced on behalf of the prosecution have proved the case beyond reasonable doubt. The arguments of the appellant are without any merits. The appeal is liable to be dismissed.

7. I have heard the learned Counsels for the parties and have examined the record.

8. The prosecutrix has been examined as PW-3 and she has deposed that her mother has been running shop of STD for the last about 1 ½ -2 years at the above said house where they used to reside. She also used to sit at that STD shop. She knows appellant and he used to visit her STD shop for making telephone calls. On 2nd September, 2004, the appellant had taken her forcibly to Balaji. On her refusal to go with him, he threatened her to kill her brother. Due to this fear, she went with him. From Balaji, he had taken her to Jaipur, Sonepat, Chandigarh and thereafter Kangra in Himachal Pradesh. The appellant used to work in Kangra as he was manufacturing cane chairs. The appellant had taken a room in an Ashram at Balaji and he made physical relationship like husband and wife with her without her consent. In Jaipur also, in a hotel, he made physical relationship like husband and wife with her without her consent. The appellant put her in fear by saying that if she raised an alarm or called anybody or told anything regarding her coming forcibly with him, he would kill her brother. The appellant had taken a room on rent in Kangra and started living there. She along with the appellant remained in Kangra for about six months and he used to make physical relations like husband and wife with her forcibly against her consent. The appellant had promised to marry her. She came to know later on, that the appellant was already married and had six children. She has proved her statement recorded under Section 164 CrPC as Ex. PW3/A. In cross-examination on behalf of the appellant, PW-3 has deposed that she knew the appellant one year back of the incident. He used to talk with her oftenly for 1-2 hours. The wife of appellant had come one week before her going away with the appellant. She had not met with the wife and children of the appellant. She came to know about the coming of wife and children of appellant before going away with appellant. The wife of appellant had also visited the shop as she had come for making a call. The wife of the appellant had also no objection on their talking. The appellant took her everywhere with her consent. The appellant used to take her with him when he used to for his work in Kangra. One more person was working with the appellant of manufacturing cane chairs. She also used to assist the appellant in manufacturing cane chairs. She used to assist the appellant for more earning for living happily. The appellant was working under one person, who used to supply the chairs to shopkeepers. She never tried to run from the custody of appellant not she requested any co-workers of appellant or any local people. Mr. Shyam Bihari Pandey, father of the prosecutrix, has been examined as PW-4 and has deposed that on 2nd September, 2004, at about

10.40 PM, the prosecutrix left the house but she did not come back. On 11th September, 2004, he got registered the FIR regarding taking away her daughter by deceitful means by the appellant. The copy of FIR is Ex. PW4/A. The prosecutrix was aged around 18-19 years as on the date of the incident and her date of birth was 2nd August, 1985.

9. The Trial Court, in the impugned judgment, concluded that since the prosecutrix had consented to physical relations on the basis of a false promise of marriage, such consent would not fall within the ambit of ‘consent’ as envisaged under Section 375 IPC, having regard to Section 90 IPC.

10. The prosecutrix was examined before the court on 21st October, 2005, wherein she deposed her age to be 20 years. In her statement, Ex. PW3/A, she further stated that she was educated up to the 9th standard. PW-4 deposed that the date of birth of the prosecutrix was 2nd August,

1985. It is clear from these testimonies that the prosecutrix was aged more than 18 years at the time of the alleged incident.

11. From the evidence on record, the issue that arises for consideration is whether the consent of the prosecutrix was voluntary or was obtained under a misconception of fact, i.e. false promise of marriage. In this regard, it is relevant herein to mention the observations of the Hon’ble Supreme Court in Naim Ahamed v. State (NCT of Delhi), (2023) 15 SCC 385 which are as follows:

It has further been observed by the Hon’ble Supreme Court in Uday v. State of Karnataka (2003) 4 SCC 46 that: