The main legal point established in the judgment is that a marriage without legal sanctity and consent obtained through misrepresentation of marital status can vitiate the consent for physical relationship.

S.P. GARG, J.

1. Aggrieved by a judgment dated 08.07.2015 of learned Additional Sessions Judge in Sessions Case No.60/2014 arising out of FIR No.129/2014 registered at Police Station Sarai Rohilla whereby the appellant-Narender Kumar was convicted for committing offence punishable under Section 376 IPC, the instant appeal has been preferred by him. By an order dated 10.07.2015, he was sentenced to undergo Rigorous Imprisonment for seven years with fine Rs. 5,000/-.

2. Briefly stated, the prosecution case, as reflected in the charge-sheet, was that during the period from 3.5.2013 to 20.01.2014 in a rented accommodation at Sarai Rohilla, the appellant committed rape upon the prosecutrix ‘X’ (changed name) repeatedly; she was forced to abort the pregnancy without her consent and was criminally intimidated. ‘X’ lodged complaint (Ex.PW-2/A) on 22.01.2014. The Investigating Officer after making endorsement (Ex.PW-5/A) lodged First Information Report. ‘X’ was medically examined; she recorded her 164 Cr.P.C. statement. Statements of the witnesses conversant with the facts were recorded. The accused was arrested. Upon completion of investigation, a charge-sheet was filed against the accused for committing offence punishable under Sections 313/376/494/420/506 IPC. By an order dated 06.09.2014, the accused was charged under Section 376(2)(n)/313/506 IPC. In order to establish its case, the prosecution examined ten witnesses besides examining CW-1 (Vidhya Devi). In 313 Cr.P.C. statement, the accused denied his complicity in the crime and pleaded false implication. The trial resulted in his conviction under Section 376 IPC. It is apt to note that the acquittal under Section 313/506 IPC recorded by the Trial court was not challenged by the State. Aggrieved by the conviction and sentence, the instant appeal has been preferred.

3. I have heard the learned counsel for the parties and have examined the file minutely. The facts are not in dispute. The appellant and the prosecutrix were acquainted with each other. Admittedly, the accused was already married to PW-6 (Uma) on 22.11.2008. PW-6 (Uma) in her testimony before the court disclosed that her marriage was never dissolved. It has further come on record that intimacy developed between the prosecutrix and the accused when ‘X’s parents took a rented accommodation near Railway Dispensary, Kishan Ganj, Delhi, where the accused used to live. Due to rumors about ‘X’ affairs with the accused, her parents shifted to House No.283, Gali No.3, Bagh Kade Khan, Kishan Ganj after about two months. It is also not in dispute that subsequently the accused and the prosecutrix got married at Arya Samaj Mandir on 03.05.2013.

4. In her complaint (Ex.PW-2/A), the victim gave detailed account as to how and in what manner, the accused established physical relations with her on several occasions after performing marriage with her. He falsely misrepresented her that he had obtained ‘divorce’ from his previous wife-Uma. When she came to know that the accused had not taken any such divorce and she was sexually exploited, she lodged the complaint with the police. In her Court statement as PW-2, she disclosed that during their stay in the vicinity of the accused, intimacy developed between the two. In February/March, 2013, the accused informed her that he had taken divorce from his wife and proposed her for marriage. On 3.5.2013, she married him at Arya Samaj Mandir. In the last week of October 2013, they started living together in a rented accommodation at Daya Basti, Sarai Rohilla. The accused established physical relations with her and she became pregnant. The accused forced her to consume pills to abort her pregnancy. When she requested the accused not to force to consume pills, he told her that he had not divorced his wife. Thereafter, the accused left her alone in the rented accommodation and did not return. Finally, she went to her parents’ house and apprised them of the occurrence. In the cross-examination,