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2017 5 1501 41360 Judgement 30-Jan-2023
2017 5 1501 41360 Judgement 30-Jan-2023
REPORTABLE
JUDGMENT
BELA M. TRIVEDI, J.
1. Leave granted.
2. The appeal filed by the appellant-accused is directed against the
disposing of the appeal has modified the judgment and order dated
enable her to maintain herself as well as the minor child. The High
Sanjay Enclave, Uttam Nagar, Delhi with her husband and three
alleging inter alia that the accused was persuading her by stating
that her husband was not earning sufficient income and that he (the
his status. The accused also assured her that he would solemnize
to have illicit intercourse with her, used to call her at various places,
after the delivery of child, he would marry her. He also assured her
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that he was not a married man and after the marriage, he would
take her to his native place. In the year 2012, the accused enticed
Mal Building and continued to have illicit relationship with her. After
false excuse that his parents were severely ill and he had to visit his
home along with the minor child Naman. He also forced her to take
the complaint that the accused had lied to her that he had gone to
his native place, but in fact he had not gone, which she came to
know when she visited the call center where the accused was
working. When she made hue and cry at his place of working, he
assured her that he would soon marry her. In the year 2012, she
visited the native place of the accused and came to know that he
was already married and had children also. The parents of the
kept on assuring her to marry her but did not marry. Hence, the
complaint was filed. The said complaint was registered as the FIR
the accused denied the allegations levelled against him and further
prosecutrix and that she was aware that he was a married person
having children, and that she had also met his wife at his house. He
Rs.1.5 lakh to Rs.2 lakhs, she lodged a false case against him. The
submitted that the Sessions Court and the High Court had failed to
appellant under Section 376 IPC, which has resulted into gross
continued even after the delivery of the child in 2011, till filing of the
According to him, the very fact that the prosecutrix had lodged the
November 2011, and after she visited his native place in 2012,
further submitted that even as per her own story, the appellant had
not disowned the responsibility of the child born from his loin and
she continued to have relationship with the accused for about four
years after the birth of the child. It was only when the accused
refused to fulfill her demand of paying huge amount to her, she filed
the complaint. The learned counsel has relied upon the decisions of
this Court in case of Deelip Singh alias Dilip Kumar vs. State of
parties for quite a long time, in the instant case for about five years,
State however submitted that the Sessions Court and the High
1 (2005) 1 SCC 88
2 (2013) 9 SCC 293
3 (2019) 18 SCC 191
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Court should not interfere with the same. According to him, even
delivered the child, which clearly proved that her consent was
though served, the court had appointed Ms. Indira Jaising, Senior
the IPC and therefore the case of the prosecutrix fell under the
Clause - Secondly of Section 375 IPC. Ms. Indira Jaising has also
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submissions.
9. For the better appreciation of the submissions made by the learned
evidence before the court that she did not consent, the court shall
such consent was given by the person under the fear of injury, or
described in the said three Clauses are wider than the expression
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hurt. As per the Clause - Fourthly, with her consent, when the man
knows that he is not her husband and that her consent is given
Fifthly, with her consent when at the time of giving the consent, the
such decisions would depend upon the proved facts in each case,
judicial mind of the courts to decide the cases on hand, but the
courts while applying the law also have to consider the evidence
appeal.
14. In Uday vs. State of Karnataka 4, the prosecutrix aged about 19
years had given her consent for having a sexual intercourse with
the accused with whom she was deeply in love, and it was alleged
later date. The prosecutrix became pregnant and the complaint was
holding that under the circumstances, the consent could not be said
4 (2003) 4 SCC 46
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15. In Deelip Singh alias Dilip Kumar Vs. State of Bihar (supra), this
16. In Deepak Gulati vs. State of Haryana 5, this Court gave one more
22. xxxxx
23. xxxxx
observed as under: -
“23. Thus, there is a clear distinction between rape
and consensual sex. The court, in such cases, must
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18. Now, in the instant case, having regard to the statutory provisions
under Section 376 IPC as has been done by the Sessions Court
and the High Court, however, on the closer scrutiny of the evidence
on record, we find that it was fallacy on the part of the courts below
emerged: -
(i) Prosecutrix was a married woman having three children.
(ii) Accused was staying in a tenanted premises situated in front
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each other.
(iv) The prosecutrix delivered a male child on 28/10/2011 from
children.
(vi) The prosecutrix still continued to live with the accused in
separate premises.
(vii) The prosecutrix and her husband took divorce by mutual
the prosecutrix had given her consent for sexual relationship under
to marry her and subsequently he did not marry, and therefore such
consent was no consent in the eye of law and the case fell under
of false promise, the accused right from the beginning would not
have any intention to marry the prosecutrix and would have cheated
promise, one cannot deny a possibility that the accused might have
the offence under Section 376. As stated earlier, each case would
woman having three children, could not be said to have acted under
such relationship with him at least for about five years till she gave
her deposition before the court, are taken on their face value, then
appears that she had betrayed her husband and three children by
having relationship with the accused, for whom she had developed
liking for him. She had gone to stay with him during the subsistence
of her marriage with her husband, to live a better life with the
accused. Till the time she was impregnated by the accused in the
year 2011, and she gave birth to a male child through the loin of the
accused, she did not have any complaint against the accused of he
having given false promise to marry her or having cheated her. She
also visited the native place of the accused in the year 2012 and
came to know that he was a married man having children also, still
husband. It was only in the year 2015 when some disputes must
have taken place between them, that she filed the present
Section 313 of Cr.P.C. had stated that she had filed the complaint
given her consent for the sexual relationship with the appellant
from the charges levelled against him. Of course, the direction for
prosecutrix.
23. At this juncture, it may be noted that during the course of hearing it
was brought to the notice of the Court that the deposition of the
24. We are apprised that in some of the trial courts the depositions of
the witnesses are not being recorded in their language and are
the Presiding officer. In our opinion, the evidence of the witness has
language of the court is not required by any of the parties, then the
and then get it translated in the language of the court for forming
recording the evidence of the witnesses, shall duly comply with the
passed by the High Court and the Sessions Court are set aside,
…..…………………J.
(AJAY RASTOGI)
…..…………………J.
(BELA M. TRIVEDI)
NEW DELHI
30.01.2023