A.K. Pathak, J. - (1.) APPELLANT has been convicted under Section 376 IPC by the Trial Court and sentenced to undergo rigorous imprisonment for three years with fine of Rs.5000/ - and in default of payment of fine to undergo simple imprisonment for three months.
(2.) PROSECUTRIX was about 22 years of age at the time of incident. Prosecutrix and Appellant were neighbours. They were living in the same building. Appellant was working as Lower Division Clerk (LDC) in Naval Headquarters, R.K. Puram, New Delhi. He was unmarried. Prosecutrix was pursuing Bachelor's degree in Arts through "correspondence course". She was taking tuitions from the Appellant. During her fourth month of pregnancy, prosecutrix disclosed to her mother that Appellant had sexually exploited her by promising her that he would marry her. Thereafter, she made a written complaint with the Crime Against Women Cell, Nanakpura, Moti Bagh, Delhi, pursuant whereof FIR No. 270/2004 under Sections 376/493/506 IPC was registered at Police Station Sarojini Nagar. In her complaint she stated that Appellant had sex with her after enticing her and by promising to marry her. Now he had been saying that he cannot marry her because of his family members. Prosecutrix has been examined as PW1. She has deposed that in the year 2004 Appellant had been giving tuitions to her; he often molested her. He had even proposed to marry her. One day he came to her house and raped her after extending threats. He also told her that she should not raise alarm as he would eventually marry her. Appellant also threatened her that in case she disclosed this fact to any one, he would defame her, kill her and her family members. Even thereafter, he committed rape upon her two/three times. After about two months, when she came to know from a doctor that she was pregnant, she asked the Appellant to marry her. Instead of marrying her, Appellant shifted to some unknown place. Thus, she was compelled to lodge the FIR.
(3.) A perusal of both the statements of the prosecutrix, that is, one made before the police and the other before the court, one thing is clear that she has made improvements on material points while deposing in the court. Initially, she had stated that Appellant had established sexual relations with her by extending promise to marry her. However, while in the witness box she has introduced the allegations of molestation, use of force and threats. In view of the shifting stands taken by her, story propounded by her that Appellant committed sexual intercourse with her against her wishes by using force or extending threats, cannot be given much credence. It is a case of consensual sex between the two adults. It may not be out of place to mention here that while bail application of the Appellant was being heard by the Additional Sessions Judge on 22nd May, 2004, prosecutrix appeared in person and stated that she was in love with the Appellant. While deposing in the court prosecutrix has admitted that she was present in the court at the time of hearing of bail application. However, she denied having made any such statement in the court that she was in love with the Appellant. It is hard to believe that a Judicial Officer of rank of Additional Sessions Judge would have wrongly recorded a fact which had not been told to him. Even otherwise, from the conduct of the prosecutrix it can be inferred that she was in love with the Appellant, which might have developed between them as they had been meeting on regular basis.;