Allahabad High Court
Shakib vs State Of U.P. Thru.Prin. Secy. Home, ... on 9 November, 2022
Author: Shamim Ahmed
Bench: Shamim Ahmed
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 13 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12664 of 2022 Applicant :- Shakib Opposite Party :- State Of U.P. Thru.Prin. Secy. Home, Lko. Counsel for Applicant :- Dharmendra Kumar Misra Counsel for Opposite Party :- G.A. Hon'ble Shamim Ahmed,J.
Heard Sri Dharmendra Kumar Misra, the learned counsel for the applicant and Sri Anurag Shukla, learned A.G.A. for the State and perused the record.
The applicant, Shakib, has moved the present bail application seeking bail in Case Crime No. 247/2022, under Section 376 I.P.C., Police Station Ajgain, District Unnao.
Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the case. As per the F.I.R. lodged by the prosecutrix she has made an allegation that she came in contact with the applicant for the last two years thereafter on false promise of marriage the applicant made physical relation with her, but denied for marriage when she made complaint to the parents of the applicant they also threatened her with dire consequences and also abuses her. In the F.I.R. there is a version of making video of the prosecutrix, but when charge-sheet was filed the same was filed only against the applicant and the names of the three other persons named in the F.I.R. were dropped and there is no any whisper regarding any video collected by the Investigating Officer.
Learned counsel for the applicant further submits that the entire prosecution story is false and fabricated only with the intention to defame the image of the applicant and his entire family in the society.
Learned counsel for the applicant further submits that the prosecutrix in her statement recorded under Section 161 Cr.P.C. she repeated the same version of the F.I.R. with slight diversion. Thereafter, her statement under Section 164 Cr.P.C. was recorded in which she took somersault and stated that she was already got married in the year 2017 and this fact was already disclosed by the prosecutrix to the applicant, thereafter she came in relation with the applicant for two years. She is aged about 23 years and on the false promise of marriage the applicant made several times physical relation with the prosecutrix and when pressure was made by the prosecutrix for solemnizing the marriage the parents of the applicant and the applicant threatened her with dire consequences and abused her.
Learned counsel for the applicant further submits that medical report of the victim does not support the prosecution case regarding allegation of physical relation, wherein the concerned doctor found that no external injury seen at the time to examination. Learned counsel for the applicant further submits that the doctor has also opined that hymen of the victim is old, healed and torned.
Learned counsel for the applicant further submits that even though if the allegation of the F.I.R. as well as the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. taken to be true, then also it is case of consenting and there is no any fraud or misrepresentation played by the applicant while giving the promise of marriage but when he came to know that the prosecutrix was already married in the year 2017 then there was some difference came in their relation. He further submits that the prosecutrix is aged about 23 years, she is major and she knew the consequences very well.
Learned counsel for the applicant further submits that even though if it is assumed that applicant has made false promise of marriage and he has developed physical relations with the victim that too on her own consent and the consent was not given under any misconception of fact, even though if it is believed that the victim-prosecuterix had consented to having physical relation with the applicant only as a consequences of her belief based on the promise made by the applicant that they both got married in future, there was hardly any evidence to prove this fact. Even though the promise if any was made in bad faith or with the intention to deceive the victim, this was not the case of the prosecution. Furhter, it is not the case of prosecuterix that the intention of the applicant was mala fide and that he had clandestine motives, the relation, if any made appears to be on the sweet will of the prosecuterix, then this will not come in the purview of rape as has been held by Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another : (2019) 9 SCC 608 and placed reliance upon paras-17 and 21 of the said judgment which reads as under:
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 accuseds 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 accuseds 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.
Learned counsel for the applicant has also placed reliance on the Hon'ble Apex Court judgment in the case of Deepak Gulati Vs. State of Haryana : (2013) 7 SCC 675 and placed reliance upon paras-14 to 18 thereof, which are as under:
14. The undisputed facts of the case are as under: I. The prosecutrix was 19 years of age at the time of the said incident.
II. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married.
III. The appellant had been giving her assurance of the fact that he would get married to her.
IV. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another.
V. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.
15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the Act 1872) provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
16. This Court considered the issue involved herein at length in the case of Uday v. State of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and came to the conclusion that in the event that the accuseds promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
17. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.
18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of mis-representation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
Learned counsel for the applicant has argued that in view of the aforesaid judgment no case under Section 376 I.P.C. is made out against the applicant. Further from perusal of the medical report of the victim also no case is made out under Section 376 I.P.C. Thus, the allegations of rape on false promise of marriage made by the victim in her statements recorded under Section 161 and 164 Cr.P.C. as well in the F.I.R. appear to have been made with her consent.
Several other submissions regarding legality and illegality of the allegations made in the F.I.R. 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 applicant 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. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that the applicant is not having any criminal history, which fact has been stated in para-15 of the affidavit filed in support of the bail application. The applicant is in jail since 06.07.2022. In the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.
Learned A.G.A. for the State opposed the prayer for bail and submits that applicant is involved in a heinous crime and has committed rape of the victim several times on false promise of marriage without her consent and the case against the applicant under Section 376 I.P.C. is made out very well. He has also referred the case of Deepak Gulati (supra), and submits that the bail application of the applicant may be rejected.
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 the absence of any convincing material to indicate the possibility of tampering with the evidence, considering the fact that there is a vast contradiction in the statements of victim recorded under Section 161 and 164 Cr.P.C. with the version of the F.I.R.; if it is believed that the victim-prosecuterix had consented to having physical relation with the applicant only as a consequences of her belief based on the promise made by the applicant that they both got married in future, there was hardly any evidence to prove this fact. Even though the promise, if any was made in bad faith or with the intention to deceive the victim, this was not the case of the prosecution. Further, it is not the case of prosecuterix that the intention of the applicant was mala fide and that he had clandestine motives; the relation, if any, made appears to be on the sweet will of the prosecuterix; the parties appears to the consenting; further the allegation of rape got demolished as per medical examination report in which the the doctor's opinion is that no any external injury found on the body of the victim, her hymen was found old, healded and torned; the victim is aged about 23 years, thus she knows consequences very well; further considering the judgment of Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar (supra) and Deepak Gulati (supra), as well as considering the larger mandate of the Article 21 of the Constitution of India and further the law laid down by the Hon'ble Apex Court in the cases of Dataram Singh vs. State of U.P. and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.
The prayer for bail is granted. The application is allowed.
Let the applicant, Shakib, involved in Case Crime No. 247/2022, under Section 376 I.P.C., Police Station Ajgain, District Unnao, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-
(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.
(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.
(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(5) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant 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.
(6) The applicant shall remain present, in person, 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.
(8) The concerned Court/ Authority/ Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.
Order Date :- 9.11.2022 Arvind