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IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P. GARG, C. HARI SHANKAR, JJ.
Mahendra @ Manish – Appellant
Versus
State (NCT of Delhi) – Respondent
Crl. A. Nos. 388 of 2016, 1010, 1011 of 2017 and Crl. M. (Bail) No. 500 of 2018
Decided On : 30-05-2018
CRIMINAL APPEAL - RAPE - COHABITATION - DECEITFULLY INDUCING BELIEF OF LAWFUL MARRIAGE - CONCEALMENT OF FORMER MARRIAGE - SECTION 376, 493, 495 IPC - INTERPRETATION - APPLICABILITY - EVIDENCE - APPRECIATION - CONVICTION - SENTENCE - MODIFICATION.
Fact of the Case:
Mahendra, the appellant, was convicted under Sections 376, 493, and 495 of the Indian Penal Code (IPC) for cohabitation, caused by a man deceitfully inducing a belief of lawful marriage, the same offence with concealment of the former marriage from the person with whom the subsequent marriage is contracted, and rape, respectively. Vijeta, the respondent, was charged under Section 120-B read with Section 376 of the IPC, of the said charges but was acquitted by the trial court.
Finding of the Court:
The High Court upheld the conviction of Mahendra under Section 376 of the IPC, holding that the prosecution had proved beyond reasonable doubt that Mahendra had sexual intercourse with the prosecutrix, M, while knowing that he was already married to Vijeta and that M had consented to the sexual intercourse because she believed herself to be lawfully married to him. However, the High Court set aside the conviction of Mahendra under Sections 493 and 495 of the IPC, holding that the prosecution had failed to prove that Mahendra had deceitfully concealed from M the fact of his former marriage with Vijeta.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that Mahendra had sexual intercourse with the prosecutrix, M, while knowing that he was already married to Vijeta and that M had consented to the sexual intercourse because she believed herself to be lawfully married to him? 2. Whether the prosecution had proved that Mahendra had deceitfully concealed from M the fact of his former marriage with Vijeta?
Ratio Decidendi: 1. The High Court held that the prosecution had proved beyond reasonable doubt that Mahendra had sexual intercourse with the prosecutrix, M, while knowing that he was already married to Vijeta and that M had consented to the sexual intercourse because she believed herself to be lawfully married to him. The High Court relied on the following evidence: * The birth certificate of Ishika, the daughter of Mahendra and Vijeta, which showed that Mahendra and Vijeta were the parents of Ishika. * The hospital records related to the birth of Ishika, which also showed that Mahendra and Vijeta were the parents of Ishika. * The Sale Deed, dated 24th July 2008, which showed that Vijeta was the wife of Mahendra. * The testimony of Mahendra and Vijeta, in which they admitted that they were married. The High Court held that this evidence established that Mahendra and Vijeta were married and that Mahendra had sexual intercourse with M while knowing that he was already married to Vijeta. The High Court further held that M had consented to the sexual intercourse because she believed herself to be lawfully married to Mahendra, as evidenced by the fact that she had sexual relations with Mahendra only after their marriage. 2. The High Court held that the prosecution had failed to prove that Mahendra had deceitfully concealed from M the fact of his former marriage with Vijeta. The High Court relied on the following evidence: * The testimony of M, in which she stated that she was not aware of Mahendra's former marriage with Vijeta until after she had married him. * The testimony of Sushma Nagpal, M's mother, in which she stated that she was not aware of Mahendra's former marriage with Vijeta until after M had married him. * The absence of any evidence that Mahendra had ever told M that he was not married to Vijeta. The High Court held that this evidence did not establish that Mahendra had deceitfully concealed from M the fact of his former marriage with Vijeta. The High Court further held that the delay of two years between the time that M learned of Mahendra's former marriage and the time that she filed a complaint against him was suspicious and suggested that M's complaint was not genuine.
Final Decision: The High Court dismissed the appeals of Vijeta and the State and partly allowed the appeal of Mahendra. The High Court upheld the conviction of Mahendra under Section 376 of the IPC and reduced the sentence to 7 years' rigorous imprisonment with a fine of Rs. 10,000. The High Court set aside the conviction of Mahendra under Sections 493 and 495 of the IPC.
C. HARI SHANKAR, J.
1. Mahendra (the appellant in Crl Appeal No. 388/2016) has, vide the impugned judgment, dated 24th February, 2016, passed by the learned Additional Sessions Judge (hereinafter referred to as the learned ASJ), been found guilty of having committed the offences contemplated by Sections 493, 495 and 375 of the Indian Penal Code, 1860 (hereinafter referred to as the IPC), which cover cohabitation, caused by a man deceitfully inducing a belief of lawful marriage, the same offence with concealment of the former marriage from the person with whom the subsequent marriage is contracted, and rape, respectively. Resultantly, the learned ASJ has convicted and punished Mahendra under Sections 376, 493 and 495 of the IPC and has, vide separate order on sentence, dated 26th February, 2016, sentenced Mahendra to suffer (i) for the offence punishable under Section 376, rigorous imprisonment for life with fine of Rs. 5 lakhs, and default simple imprisonment for 2 years and (ii) for the offences punishable under Sections 493 and 495 of the IPC, to suffer rigorous imprisonment for 10 years and fine of Rs. 1 lakh, with default simple imprisonment for one year in each case. The sentences have been directed to run concurrently. Mahendra has been extended the benefit of Section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.).
2. Simultaneously, the impugned judgment acquits Vijeta @ Varsha (the respondent in Crl Appeal No. 1010/2017), who was charged, along with Mahendra, under Section 120-B read with Section 376 of the IPC, of the said charges.
3. Mahendra has, therefore, chosen to appeal against his conviction and sentence, whereas the State and the prosecutrix M have chosen to appeal against the acquittal of Vijeta.
Facts
4. These appeals, which throw up interesting questions of fact and law, permit us, mercifully, to steer almost completely clear of references to police procedures, or to medical and forensic evidence.
5. On 16th August, 2013, a written complaint (Ex. PW-11/A), was tendered by M [whose identity must remain undisclosed, in view of the proscription contained in Section 228-A (1) of the IPC], at the Vasant Kunj Police Station, on 16th August, 2013, complaining that Mahendra/Manish had, by fraudulently presenting his wife Vijeta as his sister, contracted marriage with M and had, by consummating the marriage, outraged her modesty and ruined her life. It was further averred, in the complaint, that M had come to know of the marriage of Mahendra/Manish with Vijeta and the fact that they had a daughter from the said marriage, from a news item aired on television, more than a year thereafter. The complaint, therefore, exhorted the Police to prosecute and punish Mahendra/Manish under Sections 376 and 495 of the IPC.
6. FIR 324/2013 was registered, in the Police Station, on the basis of the aforesaid complaint submitted by M against Mahendra, under Sections 376 and 493 of the IPC, and against Vijeta, under section 120-B read with Section 376 of the IPC. Investigations commenced, during the course of which Mahendra and Vijeta were arrested, medically examined, and their statements recorded under Section 161 of the Cr.P.C. ‘M’ was also medically examined. However, nothing turns on the MLCs issued consequent on the examination of any of the dramatis personae before us; hence, further reference, thereto, may conveniently be eschewed.
7. The statement of M under Section 164 of the Cr.P.C. was recorded by the learned Metropolitan Magistrate (hereinafter referred to as the learned MM) on 19th August, 2013. The statement, which was partly in English and partly in Hindi, may be reproduced, with the vernacular portions translated into English, thus:
“On SA
I am a physically challenged person. On 23rd of 2010 my father had given an advertisement in Punjab Kesri Newspaper inviting proposals from grooms who were interested in living in my father's house. The accused Mahendra/Manish had come to meet
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