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2004 DIGILAW 107 (PNJ)

Netar Kumar @ Rakesh v. State Of Haryana

2004-01-30

S.S.SARON

body2004
Judgment S.S.Saron, J. 1. this appeal has been filed by the appellant against the judgment and order dated 1.2.1997 passed by the learned Additional Sessions Judge, Kurukshetra whereby the appellant has been sentenced and convicted as under :- Sr. No. Offence Sentence awarded 1. U/s. 376 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/-. In default of payment of fine, the accused shall further undergo R.I. for a period of two years. 2. U/s. 292 IPC To undergo rigorous imprisonment for a period of one year. 3. U/s. 324 IPC To undergo R.I. for a period of one year. 4. U/s. 496 IPC To undergo R.I. for a period of five years. 5. U/s. 506 IPC To undergo rigorous imprisonment for a period of two years. 2. The sentences of imprisonment awarded to the appellant were ordered to run concurrently and the period of detention during investigation and trial of the case was ordered to be set off against the period of sentence awarded. 3. Case FIR No. 296 dated 21.8.1995 (Ex. PF/2) was registered against the appellant at Police Station Pehowa, District Kurukshetra for the offences under Sections 292-A, 509, 354, 324, 506 Indian Penal Code (`IPC for short) on the application of the complainant Sudarshan Kumar Arya (PW-8). It is alleged in the application by the complainant that he was resident of Kurukshetra and his daughter, i.e., the prosecutrix (PW-11) (name withheld) appeared in the B.Ed. examination and she had been studying since 1985. She has been an emotional girl and for the last three-four years she used to go to the shop of Kumar Sahni (Kumar Astrologer) (appellant) for the preparation of her horoscope. Thereafter once or twice, the complainant and his wife also visited the shop to show their hand so as to know about their future. His daughter gained faith in the astrology of the appellant and she started going to him to know her future. She as also other girls, used to visit him to know about their future. After the appellant gained her confidence by instigating her he took her indecent photographs. Thereafter, on the basis of the photographs, he for the post six months had been blackmailing her. He also threatened her to act at his bidding failing which he would eliminate her and her family. After the appellant gained her confidence by instigating her he took her indecent photographs. Thereafter, on the basis of the photographs, he for the post six months had been blackmailing her. He also threatened her to act at his bidding failing which he would eliminate her and her family. The appellant got the voice of the daughter of the complainant tape-recorded and also obtained some letters written under separate names. One day, when his daughter flatly refused to act according to the bidding of the appellant, he applied acid on her forehead and right forearm and stated that he would burn her with the acid. Thereafter, the daughter of the complainant got entrapped and whatever the appellant said to her, she did to save herself and her parents life. She did not know many of the persons whose names are there in the cassettes and to whom letters were written. The appellant now wanted her to do other wrong acts and his daughter refused. The appellant then one day called the complainant and made him hear the cassette and showed him the photographs and said that he should keep sending his daughter to him otherwise he would defame them in the city as also amongst their relatives. The complainant did not pay much heed to his talk but out of fear of being defamed, he had kept silent. In any case, the appellant sent copies of the audio cassettes, letters (photostat) and the photographs to complainants relatives. On this, the complainant being helpless submitted a complaint before the Superintendent of Police, Kurukshetra. It was requested that legal action be taken. The audio cassettes, letters (photostat) and the photographs were delivered to the complainants younger brother Subhash Arya at Panipat, his wifes brother Des Raj at Matloda and Shankar Lal Nandwani his wifes sisters husband at Panipat. On the basis of the complaint, FIR was registered. The Police investigated the case and filed challan in terms of Section 173 of the Code of Criminal Procedure (`Cr.P.C. for short) on 11.11.1995 in the Court of the learned Chief Judicial Magistrate, Kurukshetra for the offences under Sections 292-A, 509, 354, 342, 376, 496, 294 and 506 IPC. The learned Chief Judicial Magistrate vide order dated 23.11.1995 committed the case to the Court of Session as the offence under Section 376 IPC was exclusively triable by the said Court. The learned Chief Judicial Magistrate vide order dated 23.11.1995 committed the case to the Court of Session as the offence under Section 376 IPC was exclusively triable by the said Court. The appellant was charge- sheeted on 1.2.1996 by the learned Additional Sessions Judge, Kurukshetra, to whom the case was entrusted for the offences under Sections 292-A, 324, 496 and 506 IPC. 4. The prosecution in order to prove its case, examined as many as 13 witnesses; besides tendered in evidence various documents. The statement of the appellant in terms of Section 313 Cr.P.C. was recorded in which he inter alia stated as follows :- "I am innocent. I am Income Tax Assessee since 1990-91. Smt. Krishna Arya along with her daughter (prosecutrix) (name withheld) came to my office about 4-5 years ago _________s (prosecutrixs) mother wanted to convince her husband Sh. S.K. Arya by my astrological way not to remove her domestic servant. After this _________ (prosecutrix) started visiting my office with her friend _________ (name withheld) oftenly. One (once - sic) on Monday in October 1992 morning _________ (prosecutrix) rang me to come to her own house. When I visited _________s (prosecutrixs) house at about 11.00 a.m. just by her sexual instincts and actions, she made me to surrender to satisfy her sexual appetite. After that _________ (prosecutrix) met me once or twice a week. On every meeting she demanded 50 to 100 rupees by one or another excuse. In last week of 1994, _________ (prosecutrix) gave me a letter to hand it over to Joginder Art Teacher at Karna Stadium Karnal. I told _________ (prosecutrix) that her letter had been misplaced and write it again. She wrote it. Next day, I told her that both the letters are with me, and that why she had made a demand of Rs. 15,000/- in one letter and of Rs. 25,000/- in another letter. Her reply was unsatisfactory. Then I doubted that _________ (prosecutrix) wanted to blackmail Mr. Joginder on the base (basic - sic) of her sexual relations with him. In every month, one every meeting _________s (prosecutrix) demand raised from Rs. 100/- to Rs. 300-400 rupees. I got the amount noted in her own hand in a ledger in every (eachy - sic) time produced in Court as Ex. D.B. to Ex. Joginder on the base (basic - sic) of her sexual relations with him. In every month, one every meeting _________s (prosecutrix) demand raised from Rs. 100/- to Rs. 300-400 rupees. I got the amount noted in her own hand in a ledger in every (eachy - sic) time produced in Court as Ex. D.B. to Ex. D.E. In January 1995, _________ (prosecutrix) expressed her acture (acutey - sic) desire to be a model girl dancer or to take part in films and serials. She desired to get her attractive and sexy photographs to be published in Magazines. In this concern an agreement deed was got typed on 7.2.1995. This is Ex. D.H. and Ex. D.J. As per this agreement 55% share of the total income was to go to _________ (prosecutrix) and 10% less i.e. 45% was to go to me, which was attested on 26.6.1995. On one day on 3.2.1995 in February 1995, _________ (prosecutrix) came to my office in a very perturbed condition and wanted to explain me what had happened to her because she took none else more close to her than me and also she did not want to degrade herself in my eyes. I told her that people call you a call girl and still I love her. Even prostitute can be loved. Then _________ (prosecutrix) suggested me that if I actually loved her so much then I should marry her temporarily till her parents settle it somewhere else. She said that after this marriage she would have more faith in me and I too would believe that she was mine _________ (prosecutrix) said that a woman had no other means than marriage to a men (man - sic) to win his confidence. For the last 2-1/2-3 years I do had (did have - sic) sexual relations with _________ (prosecutrix) therefore, I agreed. Then _________ (prosecutrix) told me that Devinder Sagar goldsmith of Main Bazar Kurukshetra raped her in a room on (of - sic) his shop. I advised her to report but she said that she would be disgraced and would be deprived of B.Ed. She told that she would take action after B.Ed. I with _________ (prosecutrix) left for Delhi for three days i.e. for 7, 8, 9 March 1995. On 7.3.1995 on the way to Delhi at Karnal that affidavit (Ex. DG) was got verified and attested. She told that she would take action after B.Ed. I with _________ (prosecutrix) left for Delhi for three days i.e. for 7, 8, 9 March 1995. On 7.3.1995 on the way to Delhi at Karnal that affidavit (Ex. DG) was got verified and attested. _________ (prosecutrixs friend) accompanied us to Delhi. In Delhi in a friends kothi I got managed a bed room for myself and _________ (prosecutrix) and a separate room for _________ (prosecutrixs friend) through the servant of the Kothi. There I advised _________ (prosecutrix) to tell me in detail whosoever misused her and if she had no objection I wanted to record that all. _________ (prosecutrix) replied she had full faith in me and allowed me to do as I wished. Then _________ (prosecutrix) got recorded her relations willingly. On 8.3.1995 I and _________ (prosecutrix) got married temporarily to win the faith of each other. I and _________ (prosecutrix) celebrated our `Suhag Ratt on the night of 8/9.3.1995. On 9.3.1995 after taking our breakfast we left for Kurukshetra. It is recorded in the statements of _________ (prosecutrixs friend) and servant Vinay Kumar under Section 161 Cr.P.C. On 21.4.1995 _________ (prosecutrix) came to my office and gave me in written (writing - sic) on stamp paper that she had been raped by Saranjit Singh Sapra on 15.4.1995 and requested me to get it attested. I suggested her to post me an Inland letter in writing in the whole incident, as the stamp of the post office will serve the purpose of affidavit, exhibited as P-3. I made a programme with _________ (prosecutrix) to enjoy the night of 17/18 July 1995 together in Delhi. On that night I told _________ (prosecutrix) that to be innocent in my eyes she was giving me false affidavit and letters. I said her that if she had been actually raped, I being her husband advised her to report the matter. Again she tried to put me off. On this she agreed to give me names of persons with whom she enjoyed willingly in written (writing - sic) on the condition that I would not report to S.P. On my suggestion she got recorded her statement concerning those persons in detail written on slip dated 18.7.1995. At this stage, she felt that she had lost faith in me and she got degraded in my eyes. At this stage, she felt that she had lost faith in me and she got degraded in my eyes. From that very day even in the state of breach of trust we continued our meetings. On 1st August, 1995 I and _________ (prosecutrix) met at _________s (friends) house. There again I asked her about her contact with Devinder. Opposing violently she said do what I like but she had married to me to win my confidence. Next day, she threatened me on phone that if I talked to any body about her sexual relations she would involve me in rape case. This is in cassette Ex. D1. Next day ______ (prosecutrixs friend) told me that _________ (prosecutrix) had told to Devinder Sagar and his gang members that I had got recorded their secrets from _________ (prosecutrix). At this they all got afraid who had misused and raped _________ (prosecutrix) and to save their own skin they misguided _________s (prosecutrix) father through _________ (prosecutrix) and got a case registered against me under a conspiracy. Under this conspiracy, _________ (prosecutrix) came to me on 21.8.1995 morning and felt sorry for the threat which she had already given me, on phone. Then she requested me to keep some documents of her girl friends and some of her photos without dress. She said these photos might come in some bodys notice as the work of white wash was being done in her house. I kept these things in my locker on 21.8.1995, in the presence of _________ (prosecutrix). On the same night, police arrested me in this falsely, fabricated case. After the registration of this false case by _________s (prosecutrixs father) father, conspirator of this case Mr. Devinder Singh P.W. forced _________ (prosecutrix) to add the blame of rape with her by Nater Kumar in her statement under Section 161 Cr.P.C. Hence, the case registered falsely." 5. The appellant also produced defence evidence. On the basis of the evidence and material on record, the learned Additional Sessions Judge convicted the appellant in the manner as indicated above. The said order, as already noticed, is assailed in this appeal. Learned counsel appearing for the appellant has contended that the appellant has been falsely implicated in the case. The appellant also produced defence evidence. On the basis of the evidence and material on record, the learned Additional Sessions Judge convicted the appellant in the manner as indicated above. The said order, as already noticed, is assailed in this appeal. Learned counsel appearing for the appellant has contended that the appellant has been falsely implicated in the case. The version in the FIR, it is contended, is a well thought out and a rehearsed affair and the complaint was lodged by the complainant after discussing and deliberating with his daughter (prosecutrix). Besides, it is contended that the incident is 5-1/2 months old from the registration of the FIR and the facts and circumstances of the case show that the prosecutrix (PW-11) was in any case a consenting party, inasmuch as, she is an educated girl of 23 years and had been roaming about with the appellant freely and also going and staying out with him. The photographs taken, the tape-recorded conversation of the prosecutrix (PW-11) that has been recorded and the affidavits and letters are in her own handwriting, which go to show her consent. Therefore, there is no question of her being raped as alleged, inasmuch as, she had been enjoying sex with the appellant at her own asking. 6. In response, learned Assistant Advocate General, Haryana stated that the prosecution has proved its case in all material aspects and the judgment and the order convicting and sentencing the appellant is a well reasoned and a just decision which warrants no interference of this Court in appeal. Therefore, it is contended that the appeal is liable to be dismissed. It is also contended that there is nothing to show that the prosecutrix (PW-11) was a consenting party as contended by the learned counsel for the appellant. 7. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. In order to appreciate the respective contentions of the learned counsel, it would be appropriate to note that the fact that the appellant had sexual relations and sexual intercourse with the prosecutrix (PW-11) is not in dispute and in fact is admitted by him. In order to appreciate the respective contentions of the learned counsel, it would be appropriate to note that the fact that the appellant had sexual relations and sexual intercourse with the prosecutrix (PW-11) is not in dispute and in fact is admitted by him. The question that requires to be considered is whether the sexual intercourse that the appellant had with the prosecutrix was against her will, without her consent or with her consent which was obtained by putting her or any person in whom she was interested in fear of death or hurt so as to amount to the offence of rape within the meaning of rape as defined in Section 375 IPC. 8. In order to appreciate the facts and circumstances, it is appropriate to first consider the statement of the prosecutrix (PW-11), who has also been cross-examined at considerable length and on several hearings. She has deposed that she used to go to the shop of the appellant to get her horoscope prepared to know about her future. The appellant, it is stated, is a renowned astrologer of Thanesar. He asked her to put her questions on a paper in writing and thereafter fold the same her palm. The accused would put his hand on her palm and tell her everything correctly that was written on the paper. In this manner, he was able to win her total confidence and she reposed full confidence in him. Thereafter, she started visiting his shop whenever she felt the necessity of doing so. About less than two years ago, she developed a liking for a boy and she went to the appellant to know about her prospects to marry him. The appellant after seeing prints on her right hand told her that chances of her marrying that boy were very remote. He further told the prosecutrix that as per her horoscope, she was a `Manglik and in case of marriage with that boy, he would not survive after marriage or the matrimonial alliance may end in divorce. The prosecutrix got non-plussed and the appellant consoled her and told her not to get upset and that he had a solution for her problems. He suggested that she should go through a bogus marriage and that the said marriage was to be later shown as dissolved. The prosecutrix got non-plussed and the appellant consoled her and told her not to get upset and that he had a solution for her problems. He suggested that she should go through a bogus marriage and that the said marriage was to be later shown as dissolved. For that, he suggested that a video film of the so-called marriage has to be prepared and thereafter the cassette was to be destroyed which would amount to dissolution of the marriage. The appellant further told her that as per his calculations and predictions, he was to die in the month of July 1996. He also told her to undergo the said bogus marriage with him and thereafter the cassette would be destroyed. For that purpose, the appellant took her to Delhi on 8.3.1995 at the house of a friend at New Ramesh Nagar, New Delhi. There the marriage was solemnized/performed and the video cassette of the same was prepared. The appellant brought eatables which she took and he took her to a room in the said house and after consuming the eatables she felt intoxicated and thereafter the appellant took her photographs in a disrobed condition. The prosecutrix (PW-11) further stated that the appellant sexually assaulted her against her consent. She was in such a state of affairs that she could not have resisted his acts. Thereafter, they returned to Kurukshetra on the same day and reached at about 10.00 p.m. After three-four days, she went to the appellant, who destroyed the marriage cassette and stated that now her stars were favourable for marriage with the boy she liked. Then the prosecutrix asked about the photographs taken at Delhi. He told her that the photographs had not been received after being developed and he would hand over the same to her as and when he received the same. She thereafter asked him for the photographs many times but he kept putting her off. She again went to the appellant for the photographs about one and half month prior to the lodging of the report. The appellant told her that the photographs have been received and he asked her to wait. She told the appellant that she was not feeling well at which he gave her two tablets which she took. She again went to the appellant for the photographs about one and half month prior to the lodging of the report. The appellant told her that the photographs have been received and he asked her to wait. She told the appellant that she was not feeling well at which he gave her two tablets which she took. Despite taking the tablets, she did not feel well and she was in bad shape and asked the appellant that she was not in a position to go alone to her house and he was asked that he should arrange for sending her to her house and the topic of photographs shall be settled later on. After some time a car was brought by the appellant and she was made to sit in the car and the appellant also sat in the car by the side of the prosecutrix. While sitting in the car, she felt drowsy and went to sleep. When she woke up, she found herself at the house of the appellant. Her hands and feet were tied and she got scared. The appellant told her that she would have to do according to his wishes and do everything at his bidding otherwise he would eliminate her and her family and that she would have to get recorded separate audio cassettes showing her alleged sexual relations with different persons. She threatened to raise an alarm at which the appellant put a tape on her mouth to gag it. He also showed her photographs in a disrobed condition and threatened to send the same to her relations to put her and her family to shame. When the prosecutrix refused to obey the appellant, she was given severe beating and acid was put on her right forearm and it was also put between her eye-brows i.e. on the forehead. The appellant also gave her one injection and thereafter she did everything at the asking and bidding of the appellant. The appellant committed rape upon her. Thereafter, he asked her to go to her house and held out a threat that in case she talked to any body about these happenings, he would eliminate her family and her younger sister would be kidnapped. On return to her house she did not tell anybody about what had happened with her. The appellant committed rape upon her. Thereafter, he asked her to go to her house and held out a threat that in case she talked to any body about these happenings, he would eliminate her family and her younger sister would be kidnapped. On return to her house she did not tell anybody about what had happened with her. At the bidding of the appellant, recording of the audio cassette was done on the dictation of the appellant in her voice with gaps and sometime the appellant would give her what was to be said in writing, which she had to speak. She was given the names of the persons about whom she was to speak. By gaps she meant that the appellant would switch off the tape recorder and then tell her to speak something which she had to do. After 1-2 days the appellant again got audio recording done in her voice at his shop because the earlier recording had remained incomplete. It is stated that since the appellant was holding her photograph showing her disrobed, so she had to do anything and everything at his bidding. The appellant also took her photographs on that day at his shop. Thereafter, she was asked to have sex with some unknown persons which she refused. Then she stopped going to the shop of the appellant. The appellant met the father of the prosecutrix somewhere and showed him her photographs in a disrobed condition and also threatened him that he should send the prosecutrix regularly otherwise he would defame the family in the brotherhood and the society. He also threatened to send the photographs to his relations. Then the appellant sent the cassettes and photographs to her uncle, her maternal uncle and her mothers sister. Her uncle and her `Massar (her mothers sisters husband) were residing at Panipat and her maternal uncle was residing at Village Matloda. She narrated her whole tale of woe about this affair to all her family members. Her statement was recorded by the Police. The appellant also got opened an account in Punjab National Bank, Kurukshetra. Initially, a sum of Rs. 3,000/- were deposited and thereafter Rs. 2,000/-. The Bank account was opened on the introduction of the appellant. She narrated her whole tale of woe about this affair to all her family members. Her statement was recorded by the Police. The appellant also got opened an account in Punjab National Bank, Kurukshetra. Initially, a sum of Rs. 3,000/- were deposited and thereafter Rs. 2,000/-. The Bank account was opened on the introduction of the appellant. In her cross-examination, the prosecutrix (PW-11) primarily stated that her photographs showing her in a disrobed condition were taken by the appellant, at his bidding and her voice was tape-recorded. Besides, she was intoxicated and put under sedation from time to time. Whatever she had done like, smoking cigarette, as shown in the photographs or looking happy, was under sedation or under coercion and threat of the appellant. The prosecutrix (PW-11) stated that the appellant had blackmailed her to do various acts at his bidding and he sexually exploited her. She also makes a mention of the fact that because she was a Manglik, she had undergone a temporary marriage with the appellant to ward off the ill effects of her being Manglik for which various ceremonies like exchange of garlands (Jaimala), recitation of Mantras before the Agnikund and thereafter Sapat paddi ceremony was performed. Then Gathbandan ceremony was performed and thereafter Kanya dan ceremony was performed followed by vermilion (sindur) being put on her parted hair with a ring by the appellant. The prosecutrix did not remember whether the same was done once or thrice. The Kanya dan ceremony was performed by her friend. Thereafter, they put sweets in each others mouth. The learned counsel for the appellant has laid considerable emphasis on the fact that the prosecution had admitted the marriage which had taken place on 8.3.1995 and the prosecutrix accompanied the appellant to Delhi and en route the affidavit (Ex. DG) was deposed by the prosecutrix (PW-11). The prosecutrix in her cross-examination stated that she had gone to Delhi with the appellant and her friend on 7.3.1995. On the way to Delhi, they had dropped at Karnal in the Court premises where she got her affidavit, Ex. DG attested. The same was in her own hand, signed by her and attested by Public Notary and was identified by an Advocate of Karnal. The stamp paper. Ex. DG, was not purchased at Karnal by her. On the way to Delhi, they had dropped at Karnal in the Court premises where she got her affidavit, Ex. DG attested. The same was in her own hand, signed by her and attested by Public Notary and was identified by an Advocate of Karnal. The stamp paper. Ex. DG, was not purchased at Karnal by her. She voluntarily stated that the document had already been got written by the appellant at Kurukshetra under pressure because she was under his influence and the original of Ex. DG was got scribed by the appellant from her a week prior to 7.3.1995. She got no document prepared at Karnal. 9. From this, it is sought to be contended by the learned counsel for the appellant that the circumstances show that all along the prosecutrix was a consenting party. The learned counsel also made a mention of the fact that the prosecutrix wanted to become a model or a film star and it was for that purpose that she had got herself photographed in the manner which showed her disrobed. It is also contended that the continued sex that both the parties, i.e., the appellant and the prosecutrix had for varying period of time, also goes to show the consent of the appellant. Even in the application made to the Police it is stated that they last had sexual intercourse on 1.8.1995. Besides, there is also an agreement that the prosecutrix would do modeling. Insofar as the marriage is concerned, it is contended that there are different versions regarding the marriage. In the statement under Section 161 Cr.P.C., the prosecutrix stated that it was a temporary marriage. Before the Magistrate, the prosecutrix in her statement under Section 164 Cr.P.C. stated that it was a temporary marriage and while deposing as PW-11 she stated that it was a bogus marriage. It is contended that the cigarette smoking also goes to show the consent and the case set up of drugging and blackmailing the prosecutrix are only for explaining the consent. 10. It would be appropriate to note that Dr. Sushma Saini (PW-3) medico- legally examined the prosecutrix. In her deposition, she stated regarding the observations of the medical examination of the prosecutrix as follows :- "A fully conscious, co-operative girl, of average built, wearing brown printed Salwar Kameej. History of last contact on 1.8.1995 (about 21 days back). 10. It would be appropriate to note that Dr. Sushma Saini (PW-3) medico- legally examined the prosecutrix. In her deposition, she stated regarding the observations of the medical examination of the prosecutrix as follows :- "A fully conscious, co-operative girl, of average built, wearing brown printed Salwar Kameej. History of last contact on 1.8.1995 (about 21 days back). So the Salwar was not taken in possession and sealed. Mansuration history, Minarchy 8 years 3/4 over 30 days regular last mansuration period about one week back. Secondary sex character were well developed. Public and axillary hairs were developed. Breasts were hemispherical and had no marks of injury on them. Libia ____ (sic - labia) majora and libal ____ (sic - labia) minora were healthy and had no mark of injury on them. Hymen was torn at 3 (degree), 6 (degree), 7 (degree), 9 (degree) and 11 (degree). The margins of the tears were healed. Vagina admitted two fingers easily. Per vaginal examination cervix backward, uterus anteverted, nulliperous size firm freely mobile on forcis were free." 11. In her cross-examination, it was opined that the patient was habitual to sexual intercourse but no time frame could be given. Besides, she did not make any mention of any injury on her body. 12. The complainant, Sudarshan Kumar Arya (PW-8) reiterated the version as given in the FIR and stated that his daughter used to go to the shop of the accused to consult and get her horoscope prepared. It is stated that she is an emotional girl and had started reposing full confidence in the appellant. He and his wife also went to the shop of the appellant, once or twice to know about their future. After the appellant had gained the confidence of his daughter, he also got her affection. He started exploiting his daughter sexually and took her indecent photographs. It is deposed that after taking obscene photographs of his daughter, the appellant started blackmailing her and he also asked his daughter to do everything at his bidding failing which he would eliminate her and her family. Once she had refused and he applied acid on her forehead and right forearm. Besides, he recorded her voice in the audio cassette under pressure and obtained certain documents/letters by coercion. Once she had refused and he applied acid on her forehead and right forearm. Besides, he recorded her voice in the audio cassette under pressure and obtained certain documents/letters by coercion. Certain statements were put in her mouth by the accused about the persons not known to her at all and the same were recorded in the audio cassette. It is to save his reputation and honour of his girl, he kept silent but the appellant delivered a copy of the audio cassette, letters and obscene photographs to his younger brother Subhash Chand at Panipat, his wifes sisters husband Shanker Lal Nirwani at Panipat and his brother-in-law Des Raj at Matloda, District Panipat and feeling that he had been put to shame, he filed a complaint Ex. PF before the Superintendent of Police, Kurukshetra which was in his handwriting and it was signed by him. 13. Dr. Anupama Singh, Medical Officer, L.N.J.P. Hospital, Kurukshetra (PW-4) along with Dr. Sushma Saini (PW-3) had conducted medico-legal examination of the prosecutrix. At the time of examination, they observed two injuries on the body of the patient :- "At the time of examination of the patient we had observed two injuries on the body of the patient :- 1. There was a transversely placed scar mark on the flxor aspect of right forearm extending up to the dorsum, size was 11 cm. and width was varying from 2 to 9 cm. It was reddish brown in colour. 2. 5 x 5 cm. scar mark was present between the eye brows at the site of Bindi. Colour was reddish brown and the age of the scar mark could not be commented, and it was not possible to comment about the cause of injury so the patient was referred to Medical College Rohtak." 14. The above two injuries on the right forearm and the forehead are the one which the father of the prosecutrix and the prosecutrix say were suffered by the prosecutrix on account of acid being applied. 15. The facts and circumstances of the case and the evidence on record goes to show that the prosecutrix (PW-11) did have sexual relations with the appellant. Besides, she was continuously and persistently harassed and blackmailed by him and it is only when the things went out of hand that a report was made to the Police. 16. 15. The facts and circumstances of the case and the evidence on record goes to show that the prosecutrix (PW-11) did have sexual relations with the appellant. Besides, she was continuously and persistently harassed and blackmailed by him and it is only when the things went out of hand that a report was made to the Police. 16. The contentions as urged by the learned counsel for the appellant, in my view, would not make the prosecutrix a consenting party to the occurrence. The contention of the learned counsel that the FIR is well thought out and a rehearsed complaint lodged by the complainant after talking to his daughter is not to much consequence. In fact, it is as a result when things had gone out of hand. The complainant (PW-8) in his deposition did state that to save his reputation and honour of his daughter, he had kept silent for a few days but the appellant delivered the copies of the audio cassette, letters and obscene photographs to his younger brother, his two brothers-in-law and it is then that he filed the complaint Ex. PF before the Superintendent of Police, Kurukshetra. 17. It is well known that in crimes of this nature, there is always reluctance on the part of the victim to report the matter to the Police. In view of the social conditions, the victim of a sexual assault thinks seriously before informing the Police as the onslaught is likely to cause a social stigma which may haunt the lady for life. Therefore, the case of consent set up by the learned counsel for the appellant in the facts and circumstances is unconvincing. The fact that the prosecutrix was taken to Delhi on 7.3.1995 and they stopped on the way where an affidavit Ex. DG was deposed by the prosecutrix in her own hand writing at Karnal would not, in my view, show that there was consent or willingness on the part of the prosecutrix to have sexual relations. In the said affidavit she deposed that she had sexual relations with others and one of the persons who sexually abused her had put a tape on her mouth and had taken her photographs in an undressed condition and then committed rape. In this manner, it is alleged that the same type of allegations have been levelled by the prosecutrix against the appellant. In this manner, it is alleged that the same type of allegations have been levelled by the prosecutrix against the appellant. The circumstances of the case show that the prosecutrix had though gone willingly to undergo temporary marriage with the appellant. However, she had gone on account of a representation held out by the appellant that she was a `Manglik and to ward-off the effect of her being a `Manglik she was to undergo a temporary marriage. She had faith in the appellant as an astrologer and, therefore, when he had told her that she was a `Manglik, she accepted the position and it is in these circumstances that she had undergone the marriage ceremonies with the appellant. The said marriage, the prosecutrix stated, was a bogus one which she had to undergo and it was performed at Delhi on 8.3.1995. Thereafter, the appellant gave some introxicants to the prosecutrix and he took her undressed photographs and also raped her. Later on, the appellant did not deliver the photographs of the prosecutrix and put her off regarding handing over the photographs on one pretext or the other. It was stated by the appellant that the same had not been received from Delhi. In July 1995, when the prosecutrix visited the shop of the appellant, she was again given two tablets. The appellant took her to his house and by tying her feet and hands told her that she would have to do everything at his bidding and even threatened to eliminate her and her family members. He stated that he wanted to get her separate audio cassette recorded regarding her alleged sexual relations with different persons. He also threatened regarding causing harm to the prosecutrix. In the circumstances, the contention of consent set up on behalf of the appellant is not plausible. Section 90 IPC relates to consent known to be given under fear or misconception. It is provided therein that a consent is not such a consent as it intended by any section of the IPC, if the consent is given by a person under fear of injury, or under a misconception of fact and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. The rule of criminal jurisprudence is that an accused is presumed to be innocent unless he is found guilty of the offence of which he is charged. To prove the ingredients of the offence, the burden lies on the prosecution. Exceptions are provided for by Sections 105 and 106 of the Indian Evidence Act, which place a part of the burden of proof on the accused to prove such facts as are within his knowledge. Section 114-A of the Evidence Act, raises a presumption of absence of consent in a rape case, which though is limited to cases falling under any of the clauses (a) to (e) or (g) of Section 376(2) IPC. However, when the prosecution establishes the ingredients of the offence for which an accused was charged, the burden shifts on the accused to prove the facts as are within his knowledge of the exceptions to which he is entitled to. The test of proof by preponderance of probabilities can be established by the accused and it need not be as heavy as that it is for the prosecution. However, to claim the benefit of the exceptions, it is for the appellant to show by preponderance of probabilities that there was a consent. In terms of Section 90 IPC afore- noticed two conditions are required to be fulfilled for its application, that is, the consent was given under a misconception and the person who obtained it knows or has reasons to believe that the consent was given in consequence of such misconception. The circumstances of the case are that according to the appellant who is an astrologer, prepared the horoscope of the prosecutrix, which showed her to be a `Manglik and to ward off the effect of her being a `Manglik, she agreed on his asking to perform a temporary marriage. It is after temporary marriage that she had sexual intercourse with the appellant. Therefore, the temporary marriage that was performed was in fact under a misconception of fact and this was in the knowledge of the appellant as he being an astrologer had represented that she was a `Manglik. Besides, the case set up by the prosecutrix is that she was intoxicated when the sexual intercourse was done. Therefore, the temporary marriage that was performed was in fact under a misconception of fact and this was in the knowledge of the appellant as he being an astrologer had represented that she was a `Manglik. Besides, the case set up by the prosecutrix is that she was intoxicated when the sexual intercourse was done. The prosecutrix was also put under fear of injury by threats held out by the appellant of blackmailing her with the photographs showing her disrobed, which the appellant had with him. In fact, the appellant did carry out the treat when the photographs were given to the relatives of the complainant Sudershan Kumar Arya (PW-8). The nature of threats held out which have been noticed amongst others include that the appellant did pour acid on her right forearm and between the eye-brows at the place where the Bindi is put which had been testified by Dr. Anupama Singh, Medical Officer (PW-3). Besides, another threat held out by the appellant is that he at one time even threatened to pour acid in her vagina. These circumstances would clearly dispel the stand of the appellant that the prosecutrix was a consenting party. The consent if any that was obtained by the appellant, was as a consequence of a misconception. Besides, the appellant had managed to bring himself in a somewhat dominant position vis-a- vis the prosecutrix. This may either be by way of his representation of his being a good astrologer and advising the prosecutrix to carry out a temporary marriage or by holding out threats of blackmailing her. In any case, in that dominant position, the appellant prevailed upon to bring about the subjugation of the prosecutrix. 18. The learned counsel for the appellant has also laid considerable emphasis on the fact that the boy with whom the prosecutrix was in love is a false story to get out of the consent, inasmuch as, in her cross-examination it is stated by the prosecutrix that she does not know whether the boy was also in love with her. It is contended that the girl is a graduate and, therefore, this story had been set up only as ruse to get out of the consent given by the prosecutrix. In my view, the prosecutrix was a girl of 23 years at the time of occurrence. The appellant was 49 years of age. It is contended that the girl is a graduate and, therefore, this story had been set up only as ruse to get out of the consent given by the prosecutrix. In my view, the prosecutrix was a girl of 23 years at the time of occurrence. The appellant was 49 years of age. Being of a mature age, he had, by winning her confidence as an astrologer, subjugated and subdued the prosecutrix to have sexual intercourse with him. It is quite probable for a girl of her age to have an infatuation for a boy of her age although, the boy with whom she has had such an interest may not even be knowing of it. Therefore, merely because she may have had infatuation for any boy which she felt was love, cannot be a circumstance to hold that the case of her being in love with a boy who was not even aware of it had been set up to wriggle out of the consent that she is alleged to have voluntarily given for having sex. The contention, in my view, as urged is too far-fetched. 19. It may also be appropriate to note that the learned trial Court had gone through the tape-recorded statement of the prosecutrix, in which she had admitted certain relations with her Art Teacher and others. She had also informed the appellant that one Deputy Superintendent of Police and one Deputy Inspector General of Police can do anything for her. The learned trial Court rightly held that the illicit relations of the prosecutrix with any other person is meaningless as nobody can outrage her modesty without her consent. The past promiscuous behaviour, if any, of the prosecutrix is no ground to condone the offence of rape and in fact the prosecutrix had a right to refuse to submit herself to sexual intercourse. The character or reputation of the victim has no bearing whatsoever or relevance in the matter of adjudging the guilt of an accused for an offence of rape. 20. The learned counsel for the appellant has laid considerable emphasis on the case of Mohan Lal v. State of Rajasthan, 2003(2) RCR(Criminal 782 (SC); Kuldeep K. Mahato v. State of Bihar, 1998(2) Apex Court Journal 629 (SC) and Vinay Kumar v. State of Haryana, 1992(2) RCR(Cr.) 446 in support of his contention that the prosecutrix was a consenting party. 20. The learned counsel for the appellant has laid considerable emphasis on the case of Mohan Lal v. State of Rajasthan, 2003(2) RCR(Criminal 782 (SC); Kuldeep K. Mahato v. State of Bihar, 1998(2) Apex Court Journal 629 (SC) and Vinay Kumar v. State of Haryana, 1992(2) RCR(Cr.) 446 in support of his contention that the prosecutrix was a consenting party. In Mohan Lals case (supra), the Honble Supreme Court acquitted the accused for the offence of rape as the facts showed that the prosecutrix was a consenting party. The circumstances taken into account were that the accused committed rape thrice during 3-4 hours and no injury was found on the person of deceased and no alarm was raised. The prosecutrix remained in the house of the accused for 1-1/2 hours after the incident and took tea. On an earlier occasion the accused had paid Rs. 50/- to the prosecutrix when rape was committed and the report was also lodged with the Police after 24 hours and special report reached the Magistrate after two days and there was no investigation for two days. The said case is confined to its own facts which there in the facts and circumstances of the said case. 21. In Kuldeep K. Mahato v. State of Bihar (supra), the accused was acquitted of the charge of rape as there were no injuries on the person of the prosecutrix including her private parts besides her conduct showed that she was a consenting party to the sexual intercourse. It was also not shown that the prosecutrix was under physical restraint. The circumstances in the said case negatived a case of forcible sexual intercourse. In the said case it was held that the prosecutrix had sufficient opportunity not only to run away from the house but she could have also taken the help of neighbours from the said village. Besides, the medical evidence indicated that there was no injury on the person of the prosecutrix including her private parts. The same is not the position in the case in hand. 22. In Vinay Kumars case (supra), this Court found that the prosecutrix had lived at Yamunanagar for two days and two nights and no hue and cry was made by her which showed her to be a consenting party. The said case is also not applicable to the facts and circumstances of the case in hand. 23. 22. In Vinay Kumars case (supra), this Court found that the prosecutrix had lived at Yamunanagar for two days and two nights and no hue and cry was made by her which showed her to be a consenting party. The said case is also not applicable to the facts and circumstances of the case in hand. 23. The present is a case where the prosecutrix was put under fear of injury and the sexual intercourse was done under a misconception of fact that she was a `Manglik and had to perform a temporary marriage to ward-off the ill- effects of being a `Manglik. 24. It is, however, to be seen as to whether the offences under Sections 292-A, 324, 496 and 506 IPC are made out against the appellant. Section 292 IPC relates to sale etc. of obscene books. Section 292(1) IPC provides that for the purpose of sub-section (2) book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items), the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. The provisions of Section 292(2)(a) IPC provides what whoever sells, lets to hire, distributes publicly, exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or in terms of clause (b) whoever imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reasons to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or in terms of clause (c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or in terms of clause (d) advertises or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or in terms of clause (e) offers or attempts to do any act which is an offence under the said section shall be punished on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. The present is not a case which may be falling under any of the sub-clauses of Section 292(2) IPC. In fact, it has rightly been pointed out by the learned counsel for the appellant that Section 292-A IPC is applicable to the State of Tamil Nadu and relates to printing etc. of grossly indecent or scurrilous matter or matter intended for blackmail. The same, therefore, could not have been applied in the State of Haryana as Section 292-A IPC is a local amendment in the State of Tamil Nadu. Therefore, the same is inapplicable in the State of Haryana. As such, the offence under Section 292 IPC is not made out against the appellant. 25. The same, therefore, could not have been applied in the State of Haryana as Section 292-A IPC is a local amendment in the State of Tamil Nadu. Therefore, the same is inapplicable in the State of Haryana. As such, the offence under Section 292 IPC is not made out against the appellant. 25. The position as regards Section 324 IPC is that Dr. Anupama Singh (PW-3) had found two injuries on the person of the prosecutrix which were scar marks. The same, according to the prosecutrix, were caused as a result of putting acid by the appellant, which were caused by him by putting a corrosive substance. Therefore, the said offence is made out against the appellant. Insofar as 4 496 IPC is concerned, it provides for undergoing a marriage ceremony dishonestly with the fraudulent intention knowing that the accused is not thereby lawfully married. The same is punishable with imprisonment for a term which may extend to seven years. In the case in hand the appellant had undergone the marriage with dishonest and fraudulent intention of not having any permanent bond but only for having sexual intercourse. Therefore, the said offence is also made out against the appellant. As regards Section 506 IPC is concerned, it may be noticed that the same provides for criminal intimidation punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Criminal intimidation as mentioned in Section 503 IPC is to the effect that whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, is said to commit criminal intimidation. In the case in hand, there has been a clear threat held out by the appellant to cause injury to the person of the prosecutrix besides injury to her reputation. The intention is such so as to cause alarm to the prosecutrix and her father. Besides, the prosecutrix was caused to have sexual intercourse, which she was not legally bound to do . The intention is such so as to cause alarm to the prosecutrix and her father. Besides, the prosecutrix was caused to have sexual intercourse, which she was not legally bound to do . Therefore, Section 506 IPC is also made out against the appellant. 26. For the foregoing reasons, the appellant is acquitted of the offence under Section 292 IPC. However, his guilt as regards the other offences, that is, Sections 376, 324, 496 and 506 IPC is upheld. 27. The question as regards the sentence of the appellant on which there has been considerable submissions made by the learned counsel for the appellant may be considered. The learned counsel for the appellant has laid considerable emphasis on the fact that in case this Court is not to agree as regards the innocence of the appellant, it may keeping in view the very peculiar nature of facts and circumstances of the case, reduce the sentence of imprisonment to that already undergone by the appellant. 28. It may be noticed that during the pendency of the appeal, the appellant was given interim bail on medical grounds. The bail was declined as not pressed at the time of admission on 24.4.1997. The same was rejected on 29.7.1997. Thereafter, he was granted interim bail for one month on 22.1.1998 on medical grounds. Another bail for 10 days was allowed on 11.3.1998. The prayer for extension was dismissed on 25.3.1998. Another application for release during the pendency of the appeal was dismissed on 31.3.1999 with the directions to post the main appeal for arguments. In the order dated 23.12.1999, it was observed that the appellant had already undergone more than four years and six months of sentence and the appeal is not likely to be heard in near future due to heavy rush of work and the remaining sentence awarded to the appellant shall remain suspended. 29. The learned counsel for the appellant has contended that keeping in view the peculiar facts and circumstances of the case and the nature of the offences attributed to the appellant, it would be just and proper that the sentence of imprisonment is reduced to that already undergone. It is contended that there are special circumstances in the case which warrant that the proviso to Section 376(1) IPC is invoked. It is contended that there are special circumstances in the case which warrant that the proviso to Section 376(1) IPC is invoked. He has stated that the appellant has undergone the travails of prosecution and trial for all these years from the date of occurrence in the year 1995. Besides, he has two small children who have no means to sustain themselves. His younger daughter is aged 13 years and is in the formative age. His son is now aged 14 years and due to the sordid affairs, he could not pursue his studies. In the circumstances, the family has been completely ruined. Besides, it is submitted that the appellant is genuinely repentant for all that has happened. 30. I have given my thoughtful consideration to the facts and circumstances of the case in hand. Punishment for rape provided for in terms of Section 376(1) IPC is for a period which shall not be less than seven years but which may be for life or a term which may extend to ten years and shall also be liable to fine. The proviso thereto envisages that the Court for adequate and for special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than seven years. Keeping in view the peculiar facts and circumstances of the case, the proviso to Section 376 IPC can be invoked. In the facts and circumstances of the case, I feel that the ends of justice would be met if the sentence of imprisonment is reduced to that already undergone. There are mitigating circumstances in the case in hand which would warrant the reduction of the sentence to that already undergone. The appellant has two small children who have no means to sustain themselves and he is the sole bread earner. His family has been suffering all these years and the stigma of conviction would have some effect on them also. The FIR in the case was registered on 21.8.1995 and a period of about nine years is about to lapse. Keeping in view the future of the minor children of the appellant and also the fact that the appellant himself has suffered the travails of trial all these years. The FIR in the case was registered on 21.8.1995 and a period of about nine years is about to lapse. Keeping in view the future of the minor children of the appellant and also the fact that the appellant himself has suffered the travails of trial all these years. Besides, he has not been keeping good health and he was granted bail on 22.1.1998 as it was submitted that he was passing blood through his urine and he had placed medical evidence on record and he was granted interim bail for one month. Thereafter, on 4.3.1998 it was submitted by the learned counsel for the appellant that the appellant was diagnosed as suffering from haematuria and in addition was diagnosed as a case tentatively of sub-acute or chronic tubercular glomerulonephritis (T.B. Infection of Kidney) and he was allowed interim bail for ten days. Thereafter, his sentence of imprisonment was suspended on 13.12.1999 as he had undergone more than four years and six month of sentence. Besides, he has expressed genuine repentance of all that has happened. Therefore, at this stage in the facts and circumstances it would be undesirable to send him to jail. There are special and mitigating circumstances to reduce the sentence to that already undergone. 31. However, at the same time, it would be just and proper that the appellant pays an amount of Rs. 15,000/- to the victim in terms of Section 357(3) Cr.P.C. This by no means can be taken to be a compensation for the miseries that she has suffered but only a measure to re-assure the victim that she has not been forgotten in the criminal justice system and in accord with the judgment of the Supreme Court in Hari Kishan & State of Haryana v. Sukhbir Singh and others, AIR 1988 SC 2127. Therefore, the appellant shall pay a sum of Rs. 15,000/- to the victim which he shall deposit in the Court of the learned Chief Judicial Magistrate, Kurukshetra within two months from the date of receipt of certified copy of this order and the learned Chief Judicial Magistrate shall disburse the amount to the victim. Therefore, the appellant shall pay a sum of Rs. 15,000/- to the victim which he shall deposit in the Court of the learned Chief Judicial Magistrate, Kurukshetra within two months from the date of receipt of certified copy of this order and the learned Chief Judicial Magistrate shall disburse the amount to the victim. With the above observations, the appeal is partly allowed to the extent that the conviction and sentence under Section 292 IPC is set aside, however, the conviction for the offences under Sections 376, 324 and 496 IPC is maintained but the sentence is reduced to that already undergone. However, the sentences are ordered to run concurrently. The appeal is accordingly disposed of.