Harishchandra Maurya @ Harishchand ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 11 August, 2023

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Allahabad High Court

Harishchandra Maurya @ Harishchand ... vs State Of U.P. Thru. Prin. Secy. Home Lko. ... on 11 August, 2023

2. Heard Shri Abhishek Shukla alongwith Shri Suresh Chandra Goswami, learned Counsels for the appellant, Shri Ashok Kumar Singh, learned A.G.A-1 for the State and perused the material placed on record.

3. Learned A.G.A-I for the State has already filed counter affidavit in reply thereto learned Counsel for the appellant has also filed rejoinder affidavit, both are on record.

4. As per the office report dated 06.02.2023 notice has already been served upon the opposite party No.2, thereafter this Court on 06.07.2023 passed the following order:-

"Learned A.G.A. for the State-opposite party No. 1 has already filed counter affidavit and in reply thereto learned counsel for the appellant has also filed rejoinder affidavit, which are on the record.

As per the office report dated 06.02.2023 notice has already been served upon the opposite party No. 2, but till date neither any counsel has appeared nor any counter affidavit has been filed on her behalf.

As a last opportunity, the opposite party No. 2 is granted two weeks' and no more time to file counter affidavit. One week, thereafter, is allowed to the learned counsel for the appellant to file rejoinder affidavit.

Put up this case on 25.07.2023 before appropriate Court."

5. Today when the case is taken up, there is no one present on behalf of opposite party No.2 neither any counter affidavit has been filed, as such, it appears that opposite party No.2 is not interested in contesting this case. Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed for final arguments to decide the present appeal.

6. This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 28.11.2022 passed by the learned Special Judge, S.C./S.T. Act, Gonda in Bail Application No.2667 of 2022, arising out of Case Crime No.428 of 2022, under Section 376 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station-Nawabganj, District Gonda, whereby the bail application of the appellant has been rejected.

7. Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity and village rivalry. As per the case set up by the prosecutrix in the F.I.R., she had admitted that she is aged about 21 years and she knew the appellant for the last two to three years and she was in relationship with the appellant and she used to talk with the appellant over mobile phone. He further submits that they used to meet and they established sexual relations several times. When the prosecutrix pressurized the appellant for marriage, he denied the proposal for marriage and the prosecutrix has leveled allegations of false promise of marriage with the prosecutrix, who appears to be major. He further submits that the prosecutrix in her statement recorded under Section 161 and 164 Cr.P.C. has reiterated the same version of the F.I.R.

8. He further submits that as the prosecutrix herself had admitted that she was aged about 21 years, thus, she was major at the time of incident and she knew the consequences very well. In fact, the appellant has not made any physical relation with the prosecutrix without her consent, she has made allegations of rape only with the intention to add gravity to the offences. In support of his contentions, learned Counsel for the appellant has emphasized on the medical report and submits that Doctor, in his report clearly opined that there are no signs of use of force or forceful penetration and he also submits that the prosecutrix herself had not made any allegation against the appellant regarding forceful physical relations. The prosecutrix has further stated in her statement recorded under Section 161 and 164 Cr.P.C. that on the pressure created for marriage, the appellant refused for marriage.

9. Learned counsel for the appellant further submits that no such promise was ever made and even though if any promise is made with the prosecutrix, she was major and was knowing the consequences very well. In support of his arguments, learned counsel for the appellant has relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608 and placed reliance upon paras 17 and 21, which are reproduced hereunder:-

"17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainants statement, she admitted that she was aware that there would be significant opposition from both the complainants and accused families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused promise to marry the complainant was not of immediate relevance to the complainants decision to engage in sexual intercourse with the accused, which was motivated by other factors:[(2003) 4 SCC 46].

25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married (Emphasis supplied).

21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellants failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellants promise of marriage. Therefore, even if the facts set out in the complainants statements are accepted in totality, no offence under Section 375 of the IPC has occurred."

10. Thus, learned counsel for the appellant submits that in view of the judgment rendered by the Hon'ble Supreme Court, the promise of marriage made by the appellant to the prosecutrix is in good faith as per the case set up by the complainant and it does not amount to rape as there is a consent of the prosecutrix. It is further submitted that even the medical report of the prosecutrix does not support the version of the prosecution as no internal or external injury was found on the person of the prosecutrix and the vagina was found to be healed at the time of incident and as per her own statement, the age of the prosecutrix was 21 years, as such, allegation of rape leveled against the appellant is false and, therefore, the appellant is entitled for bail, thus, the present appeal may be allowed.

11. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 02.11.2022 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

12. Learned A.G.A. opposed the prayer for bail, however, he is unable to dispute the contentions raised by learned counsel for the appellant.

13. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in the absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that in the statement of the victim recorded under Section 161 and 164 Cr.P.C., there is no allegation of rape and also after perusal of the medical report, as the doctor in his opinion has opined that no internal or external injury was found on the person of the prosecutrix and her age was found to be 21 years and further considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22 and Pramod Suryabhan Pawar (Supra), this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

14. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 28.11.2022 passed by the learned Special Judge, S.C./S.T. Act, Gonda in Bail Application No.2667 of 2022, arising out of Case Crime No.428 of 2022, under Section 376 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station-Nawabganj, District Gonda is hereby set aside and reversed.

15. Let the appellant, Harishchandra Maurya @ Harishchand Maurya be released on bail in the Case Crime No.428 of 2022, under Section 376 I.P.C. and Section 3(2)(V) of S.C./S.T. Act, Police Station-Nawabganj, District Gonda with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain present, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

16. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the prayer for bail and must not be construed to have any reflection on the ultimate merit of the case.

17. The trial court is also directed to expedite the trial of the aforesaid case by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

Order Date :- 11.8.2023 Piyush/-

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Allahabad High Court