Allahabad High Court
Krishan Mohan @ Krishna Mohan Singh vs State Of Up And Another on 1 August, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 15.07.2022 Delivered on 01.08.2022 Court No. - 80 Case :- APPLICATION U/S 482 No. - 14326 of 2020 Applicant :- Krishan Mohan @ Krishna Mohan Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- A Kumar Srivastava,Manish Kumar Counsel for Opposite Party :- G.A.,Brijesh Sahai(Senior Adv.),Sushil Dubey Hon'ble Rajeev Misra,J.
1. This application under section 482 Cr.P.C. has been filed challenging the charge-sheet dated 04.07.2020 submitted in Case Crime No. 661 of 2019, under sections 493, 376, 504, 506, 328, 406 I.P.C. and section 67 (a) I.T. Act, Police Station- Masoori, District- Ghaziabad as well as the entire proceedings of Criminal Case No. 21212 of 2020 (State vs. Krishna Mohan Singh) under sections 493, 376, 504, 506, 328, 406 I.P.C. and section 67(a) I.T. Act, Police Station- Masoori, District- Ghaziabad, now pending in the court of Chief Judicial Magistrate, Ghaziabad.
2. I have heard Mr. Dharm Pal Singh, the learned Senior Counsel assisted by Mr. Anil Kumar Srivastava, the learned counsel for applicant, the learned A.G.A. for State and Mr. Sushil Dubey, the learned counsel representing first informant/opposite party-2.
3. Record shows that first informant/opposite party-2, who is working as a Police Constable in U.P. Police, submitted an application dated 11.05.2019 before Senior Superintendent of Police, Ghaziabad alleging therein that applicant Krishan Mohan @ Krishna Mohan Singh, who is working as Sub-Inspector in U.P. Police, has dislodged her modesty on the false promise of marriage and, therefore, appropriate action be taken against him.
4. After submission of above-mentioned application, the statement of prosecutrix was recorded by Enquiry Officer on 20.05.2019. The prosecutrix in her aforesaid statement did not support the allegations made in the application.
5. Thereafter, the prosecutrix also filed an affidavit dated 07.06.2019 before the Enquiry Officer, wherein also she did not support the prosecution story.
6. Subsequently, first informant/opposite party-2, in respect of incidents, which are alleged to have occurred from 23.12.2018 to 09.05.2019, lodged a delayed F.I.R. dated 03.10.2019, which was registered as Case Crime No.661 of 2019, under sections 493, 376, 504, 506, 328, 406 I.P.C. and section 67 (a) I.T. Act, Police Station- Masoori, District- Ghaziabad.
7. The gravamen of the allegations made in the F.I.R. is to the effect that applicant on a false promise of marriage has dislodged the modesty of the prosecutrix repeatedly as he was already married and has subsequently resiled from the promise so made.
8. After lodging of aforementioned F.I.R., first informant/opposite party-2, Km. Neetu lodged another F.I.R. dated 16.01.2020, which was registered as Case Crime No.80 of 2020, under sections 420, 406, 504, 506 I.P.C., Police Station- Masoori, District- Ghaziabad. In the aforesaid F.I.R., two persons, namely, Smt. Neetu Singh (wife of Brijesh Singh) and Brijesh Singh have been nominated as named accused.
9. In brief, the prosecution story as unfolded in aforesaid F.I.R. is to the effect that named accused are pressurizing the first informant to compromise with the accused Brijesh Singh.
10. Subsequent to the F.I.R. dated 03.10.2019, Investigating Officer proceeded with statutory investigation of concerned case crime number i.e. C.C. No 661 of 2019 in terms of Chapter XII Cr.P.C. The statement of prosecutrix was recorded by Investigating Officer under Section 161 Cr.P.C. on 20.11.2019. She, however, did not support the prosecution story as unfolded in the F.I.R. This was followed by the statement of prosecutrix under section 164 Cr.P.C., wherein she resiled from her earlier statement recorded under section 161 Cr.P.C. The prosecutrix now supported the prosecution story as unfolded in the F.I.R.
11. On 24.02.2020, Investigating Officer recorded the statement of Km. Neeraj (sister of the prosecutrix). She has also supported the prosecution story as unfolded in the F.I.R.
12. Thereafter, the second statement of prosecutrix was recorded under section 161 Cr.P.C. on 14.03.2020. She has reiterated her earlier statement under Section 164 Cr.P.C. Similarly, the second statement of Km. Neeraj (sister of the prosecutrix) was recorded on 30.05.2020. She has also again supported the prosecution story as unfolded in the F.I.R.
13. On the basis of above and other material collected by Investigating Officer, during course of investigation, which in his opinion is adverse to applicant, he opined to submit a charge-sheet. Accordingly, Investigating Officer submitted the charge-sheet dated 04.07.2020, whereby applicant- Krishan Mohan @ Krishna Mohan Singh has been charge-sheeted under sections 493, 376, 504, 506, 328, 406 I.P.C. and section 67 (a) I.T. Act.
14. After submission of aforementioned charge-sheet, cognizance was taken upon same by Chief Judicial Magistrate, Ghaziabad, vide Cognizance Taking Order dated 13.07.2020. Consequently, Criminal Case No. 21212 of 2020 (State vs. Krishna Mohan Singh) under sections 493, 376, 504, 506, 328, 406 I.P.C. and section 67 (a) I.T. Act, Police Station- Masoori, District- Ghaziabad came to be registered in the court of Chief Judicial Magistrate, Ghaziabad.
15. Feeling aggrieved by above as well as the entire proceedings of aforementioned criminal case, applicant, who is a charge-sheeted accused, has now approached this Court by means of present application under section 482 Cr.P.C.
16. Present application came up for admission on 28.09.2020 and this Court passed the following order:-
"Sri Manish Kumar, learned counsel for the applicant has filed supplementary affidavit today, which is taken on record.
Heard Sri Manish Kumar, learned counsel for the applicant as well as Sri Sushil Dubey, learned counsel for the opposite party no.2 and learned A.G.A. for the State. Perused the record.
Learned counsel for the applicant prays for and is permitted to correct the prayer clause during the course of the day.
This application u/s 482 Cr.P.C. has been preferred seeking the quashing the charge sheet dated 04.07.2020 as well as entire proceedings of Criminal Case No. 21212 of 2020, arising out of Case Crime No. 661 of 2019, under Sections 393, 376, 504, 506, 328, 406 I.P.C. and Section 67(a) I.T. Act, Police Station Masoori, District Ghaziabad.
Submission of the learned counsel for the applicant is that the applicant is innocent and has been falsely implicated in the present case. There are contradictions in the version of the F.I.R., statement of the victim recorded under Sections 161 and 164 Cr.P.C. The prosecutrix and the applicant were in love with each other for a long time and she was the consenting party. It is next submitted that though in the FIR the victim has levelled allegation of rape against the applicant but she in her statement recorded under Section 161 Cr.P.C. has denied allegation of rape and she has stated that the applicant has not committed any rape with her. Subsequently, under some influence she in her statement recorded under Section 164 Cr.P.C. has changed her version making allegation of rape against the applicant.
Further submission of learned counsel for the applicant is that with regard to the incident alleged to have taken place on 23.12.2018, the FIR has been lodged on 04.08.2019 and no plausible explanation has been given by the prosecution for this delay. As per medical report the age of the victim is 27 years and she is in a position to think about wrong or right. The victim has denied for internal or external examination nor she has received any injury.
It is also submitted by the learned counsel for the applicant that before the present F.I.R. the victim and the applicant have given a joint affidavit to the Inquiry Officer stating that the alleagations made in the complaint were manipulated and no rape was committed with her by the applicant. Counsel for the applicant has also drawn the attention of this Court to the Inquiry Report dated 25.05.2019 submitted by the Deputy Superintendent of Police (Traffic) Ghaziabad, copy of which is annexed as Annexure No.1 to the supplementary affidavit wherein the Inquiry Officer has come to the conclusion that the complaint was given by the victim in annoyance after some discussion with the applicant. No such incident as alleged ever took place and the allegation made in the complaint is forged and fabricated. She does not want any action to be taken against the applicant on the said complaint.
It is further submitted by the learned counsel for the applicant that the opposite party no.2 has also lodged an F.I.R. dated 15.05.2019, under Sections 353, 354, 323, 504 and 506 I.P.C. against two other persons, copy of which filed as Annexure No.5 to the affidavit. The action of opposite party no.2 shows that she wants to harass the persons without any cause. Submission is that malafides behind the prosecution are apparent on the face of record and if the proceedings against the applicant are allowed to go on, it will result in the abuse of court's process.
Learned counsel for the opposite party no.2 did not place any material to rebut the argument raised by the applicant's counsel.
The matter requires detailed hearing on facts and law both.
Learned counsel for the opposite party no.2 prays for and is granted four weeks' time to file counter affidavit.
Learned A.G.A. may also file counter affidavit within the same period.
Rejoinder affidavit may be filed within two weeks thereafter.
List this case on 19.11.2020 in the additional cause list before the appropriate Bench.
Till the next date of listing, further proceedings of Criminal Case No. 21212 of 2020, arising out of Case Crime No. 661 of 2019, under Sections 393, 376, 504, 506, 328, 406 I.P.C. and Section 67(a) I.T. Act, Police Station Masoori, District Ghaziabad, pending before the learned C.J.M., Court Ghaziabad with regard to applicant, shall remain stayed.
Order Date :- 28.9.2020 "
17. Pursuant to above order dated 28.09.2020, pleadings have been exchanged between the applicant and opposite party-2. No counter affidavit has yet been filed by learned A.G.A. However, irrespective of above, learned counsel for the parties jointly submit that since pleadings have been exchanged between the parties, this application be heard and disposed of finally at the admission stage itself. Accordingly, with the consent of the counsel for the parties and as provided under the Rules of Court, this application is being disposed of finally at the admission stage itself.
18. Mr. Dharm Pal Singh, the learned Senior Counsel assisted by Mr. Anil Kumar Srivastava, the learned counsel for applicant submits that present criminal proceedings are not only malicious but also an abuse of the process of Court. First informant/opposite party-2 i.e. the prosecutrix is major and she is a consenting party. Referring to the earlier statements of prosecutrix as well as the notary affidavit submitted by her before the Enquiry Officer, learned Senior Counsel contends that present criminal proceedings appear to have been engineered on account of some misunderstanding and are now being dragged on account of an ulterior motive. As such, same are accentuated by mala fide on the part of first-informant/opposite party-2. It is, further, submitted by learned Senior Counsel that during course of investigation, no such material was collected by Investigating Officer, on the basis of which, it can be definitely concluded that applicant has played fraud with the prosecutrix or has dislodged her modestly forcibly i.e. without her consent. With reference to the provisions contained in section 375 I.P.C., he submits that no offence under section 376 I.P.C. or the other charging sections is made out against applicant. The F.I.R. has been lodged with delay for which no plausible explanation has been offered. As such, the prosecution of applicant itself cannot be maintained. Once the prosecution of applicant itself cannot be maintained, no reason exists to allow the continuation of the proceedings of aforementioned criminal case. It is thus urged that the entire proceedings of the criminal case giving rise to this application under Section 482 Cr.P.C. are not only malicious but also an abuse of the process of court. Consequently, same are liable to be quashed by this Court. Learned Senior Counsel has referred to the following judgements of the Apex Court in support of his aforementioned submissions:-
i. Pramod Suryabhan Pawar Vs. State of Maharashtra, 2019 (9) SCC 608.
ii. Sonu @ Subhash Kumar Vs. State of U.P. and another, 2021 SCC On Line SC 181.
19. Per contra, the learned A.G.A. has opposed this application. He submits that Investigating Officer subsequent to the F.I.R. giving rise to present criminal proceedings proceeded with the investigation of the same. He examined the first informant/opposite party-2 and other witnesses under Section 161 Cr.P.C. Prosecutrix was also examined under Section 164 Cr.P.C. Some of the witnesses so examined have supported the prosecution story. On the basis of above and other material collected by the Investigating Officer during course of investigating, he came to the conclusion that offence complained of against applicant is prima-facie established. He, therefore, opined to submit a charge-sheet. Accordingly, Investigating Officer submitted the charge-sheet dated 04.07.2020, whereby applicant has been charge-sheeted under Sections 493, 376, 504, 506, 328, 406 I.P.C. and Section 67 (4) Information Technology Act. In the aforesaid charge-sheet as many as 17 prosecution witnesses have been nominated. He therefore submits that at this stage, it cannot be said that prosecution case is false or there is no material to support the prosecution of applicant.
20. It is next contended by learned A.G.A. that at the stage of taking cognizance on a police challan report, the Court is not required to meticulously weigh the material on record. The court has to be just prima-facie satisfied. To buttress his submission, he has referred to paragraph 37 of the judgement of Supreme Court in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499, wherein following has been observed. For ready reference same is reproduced herein under:
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
21. It is, further, contended by learned A.G.A. that charge sheet is the outcome of investigation. Since no deficiency, irregularity or illegality has been pointed out in investigation of above mentioned case crime number, the consequential charge sheet cannot be quashed.
22. It is lastly contended by learned A.G.A. that entire material collected by Investigating Officer during course of investigation has not been brought on record. In the absence of same, this Court cannot examine the veracity of allegations made in F.I.R, or the correctness of charge sheet. To lend legal support to his submission, he has referred to the judgement of Apex Court in Kaptan Singh Vs. State of U.P and Others, 2021 SCC Online SC 580, wherein following has been observed in the last line of paragraph 25:
"The High Court has failed to notice and/or consider the material collected during the investigation"
23. According to learned A.G.A., there is nothing on record to show that Chief Judicial Magistrate, Ghaziabad had no jurisdiction to take cognizance on the charge-sheet so submitted nor there is any material to establish that the proceedings are otherwise not maintainable. In the absence of any legal bar, the veracity of the criminal proceedings pending against applicant, cannot be questioned simply on the basis of certain averments made in the affidavit filed in support of the application under section 482 Cr.P.C.
24. On the aforesaid premise, the learned A.G.A. vehemently submits that no case for indulgence by this Court is made out and therefore, present application is liable to be dismissed.
25. Mr. Sushil Dubey, the learned counsel for first informant/opposite party-2 has vehemently opposed the present application. He has taken the Court to the various documents on record. On the basis of same, it is sought to be contended by learned counsel for first informant/opposite party-2 that applicant is a married man. Without having obtained divorce from his earlier wife, applicant indulged in extra marital relationship with the prosecutrix on the false promise of marriage. He, therefore, submits that applicant is, therefore, guilty of committing adultery during the subsistence of his first marriage as he has developed physical relationship with opposite party-2. Referring to the statements of prosecutrix as recorded under sections 161/164 Cr.P.C., learned counsel for first informant/opposite party-2 submits that material on record prima facie goes to show that a false promise of marriage was extended by applicant to the prosecutrix. Opposite party-2 had no reason or occasion to doubt the bonafide of applicant. As such, the consensual physical relationship of parties can be of no help to the applicant as the same was obtained by playing fraud. Applicant has dislodged modesty of the prosecutrix on the basis of above. Resultantly, the consent of the prosecutrix is immaterial. On the cumulative strength of above, he, therefore, submits that no question of law or fact is involved in present application warranting interference by this Court in exercise of jurisdiction under section 482 Cr.P.C. As such, present application is liable to be dismissed by this Court. Reliance is placed upon the judgement of a learned Single Judge of this Court in Criminal Misc. Application under Section 482 Cr.P.C. No. 10125 of 2021 (Bipin Kumar @ Vikky Vs. State of U.P. and another).
26. Before proceeding to consider the rival submissions, it is appropriate to reproduce sections 375 and 376 I.P.C., as primarily the arguments and counter arguments of learned counsel for the parties revolved around the same. Same read as under:-
375. Rape.--A man is said to commit "rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other persons; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
(First) -- Against her will.
(Secondly) --Without her consent.
(Thirdly) -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) --With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
(Fifthly) -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
(Sixthly) -- With or without her consent, when she is under sixteen years of age.
(Seventhly) - When she is unable to communicate consent.
376. Punishment of rape.- (1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not he less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.
2. Whoever,-
a. being a police officer, commits rape-
i. within the limits of the police station to which such police officer is appointed; or ii. in the premises of any station house; or iii. on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or b. being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or c. being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or d. being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or e. being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or f. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or g. commits rape during communal or sectarian violence; or h. commits rape on a woman knowing her to be pregnant; or i. commits rape on a woman when she is under sixteen years of age; or j. commits rape, on a woman incapable of giving consent; or k. being in a position of control or dominance over a woman, commits rape on such woman; or l. commits rape on a woman suffering from mental or physical disability; or m. while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or n. commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.
(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this sub-section shall be paid to the victim.
376A. Punishment for causing death or resulting in persistent vegetative state of victim.-
Whoever, commits an offence punishable under sub-section (l) or sub¬section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death.
376AB. Punishment for rape an woman under twelve years of age.-
Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life and with fine or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
376B. Sexual intercourse by husband upon his wife during separation.-
Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.
376C. Sexual intercourse by person in authority.-
Whoever, being-
a. in a position of authority or in a fiduciary relationship; or b. a public servant; or c. superintendent or manager of a jail, remand home or other place of custody established by or under any law for the time being in force, or a women's or children's institution; or d. on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than 6ve years, but which may extend to ten years, and shall also be liable to fine.
376D. Gang rape.- Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
376DA. Punishment for gang rape on woman under twelve years of age.-
Where a woman under sixteen years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
376DB. Punishment for gang rape on woman under twelve years of age.-
Where a woman under twelve years of age is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, or with death:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
376E. Punishment for repeat offenders.-
Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB or section 376D or section 376DA or section 376DB and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.'.
27. Ambit and scope of sections 375/376 I.P.C. have been examined by Apex Court on numerous occasions. However, instead of chronologically referring to them, reference shall be made only to few of them, wherein court has examined the applicability of Section 376 I.P.C. in the light of rider imposed by Section 375 I.P.C. Aforesaid issue came up for consideration before Supreme Court in Pramod Suryabhan Pawar vs. State of Maharashtra and Another, (2019) 9 SCC 608, wherein following was observed by the Court in paragraphs 14 to 18 of the report:
"14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held:
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
Similar observations were made by this Court in Deepak Gulati v State of Haryana ("Deepak Gulati"):
"21. ... 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;"
15. In Yedla Srinivasa Rao v State of Andhra Pradesh the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed:
"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."
16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. ... 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 misrepresentation 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.
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's 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's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:
"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."
18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
28. Subsequently, Court again examined the provisions of Section 376 I.P.C. in the light of restrictions imposed by Section 375 I.P.C. in Mahesahwar Tigga Vs. State of Jharkhand, 2020 (10) SCC 108. Court dealt with the meaning and nature of consent alleged to have been extended by prosecutrix. Paragraphs 12, 13 and 14 of the report are relevant for the controversy in hand. Accordingly, same are extracted herein-under:
"12. The prosecutrix acknowledged that an engagement ceremony had also been performed. She further deposed that the marriage between them could not be solemnised because they belonged to different religions. She was therefore conscious of this obstacle all along, even while she continued to establish physical relations with the appellant. If the appellant had married her, she would not have lodged the case. She denied having written any letters to the appellant, contrary to the evidence placed on record by the defence. The amorous language used by both in the letters exchanged reflect that the appellant was serious about the relationship desiring to culminate the same into marriage. But unfortunately for societal reasons, the marriage could not materialise as they belonged to different communities.
13. The question for our consideration is whether the prosecutrix consented to the physical relationship under any misconception of fact with regard to the promise of marriage by the appellant or was her consent based on a fraudulent misrepresentation of marriage which the appellant never intended to keep since the very inception of the relationship. If we reach the conclusion that he intentionally made a fraudulent misrepresentation from the very inception and the prosecutrix gave her consent on a misconception of fact, the offence of rape under Section 375 IPC is clearly made out. It is not possible to hold in the nature of evidence on record that the appellant obtained her consent at the inception by putting her under any fear. Under Section 90 IPC a consent given under fear of injury is not a consent in the eyes of law. In the facts of the present case we are not persuaded to accept the solitary statement of the prosecutrix that at the time of the first alleged offence her consent was obtained under fear of injury.
14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her."
29. Court again considered the issue as to whether offence under Section 376 IPC can be said to have been committed by accused in the facts and circumstances of the case in Sonu alias Subhash Kumar vs. State of Uttar Pradesh and Another, 2021 SCC Online SC 181. After examining the material on record and the law as laid down in Pramod Suryabhan Pawar (supra) quashed the proceedings. Following was observed in paragraphs 7 to 9 and 11 of the report:
7. On the basis of the rival submissions and with the assistance of the counsel, we have perused the FIR. The FIR specifically records that the second respondent had developed a friendship with the appellant and that he had assured that he would marry her. The FIR then records that the appellant and the second respondent developed a physical relationship which spread over a period of one and a half years, during the course of which the second respondent conversed with the parents and sister of the appellant. It has been alleged in the FIR that the parents of the appellant were agreeable to the couple getting married. As a matter of fact, the appellant returned to his home town at Jhansi on 5 January 2018 when he had made a phone call to her stating that she should come and visit him so that they can get married. On travelling to Jhansi at the behest of the appellant, the second respondent was informed by the father of the appellant that the appellant did not wish to marry her. The contents of the statement under Section 164 of CrPC also indicate that the second respondent had "voluntarily developed relationship of husband-wife with him". The second respondent has then stated that "now, he and his family members are refusing to marry with me". The second respondent has further stated that "my sole grievance is that Sonu is refusing to marry with me".
8. The contents of the FIR as well as the statement under Section 164 of CrPC leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:
(i) The relationship between the appellant and the second respondent was of a consensual nature;
(ii) The parties were in the relationship for about a period of one and a half years; and
(iii) Subsequently, the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.
9. In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:
"Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it..."
10. Further, the Court has observed:
"To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.
30. Irrespective of aforementioned judgements, the Apex Court in Phool Singh vs. State of Madhya Pradesh, (2022) 2 SCC 74, examined the issue as to whether accused can be convicted on the sole testimony of the prosecutrix or not. Court ultimately concluded as under in paragraphs 7 to 11 of the report:
7. At the outset, it is required to be noted that in the present case, the prosecutrix has fully supported the case of the prosecution. She has been consistent right from the very beginning. Nothing has been specifically pointed out why the sole testimony of the prosecutrix should not be believed. Even after thorough cross-examination, she has stood by what she has stated and has fully supported the case of the prosecution. We see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. The submission on behalf of the accused that no other independent witnesses have been examined and/or supported the case of the prosecution and the conviction on the basis of the sole testimony of the prosecutrix cannot be sustained is concerned, the aforesaid has no substance.
8. In the case of Ganesan (supra), this Court has observed and held that there can be a conviction on the sole testimony of the victim/prosecutrix when the deposition of the prosecutrix is found to be trustworthy, unblemished, credible and her evidence is of sterling quality. In the aforesaid case, this Court had an occasion to consider the series of judgments of this Court on conviction on the sole evidence of the prosecutrix. In paragraphs 10.1 to 10.3, it is observed and held as under:
10.1. Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in Vijay [Vijay v. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under:
"9. In State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under:
'16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
10. In State of U.P. v. Pappu [State of U.P. v. Pappu, (2005) 3 SCC 594] this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:
'12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.'
11. In State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384], this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under:
'8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. ... Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. ... Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. ...
21. ... The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.' (emphasis in original)
12. In State of Orissa v. Thakara Besra [State of Orissa v. Thakara Besra, (2002) 9 SCC 86], this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.
13. In State of H.P. v. Raghubir Singh [State of H.P. v. Raghubir Singh, (1993) 2 SCC 622], this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P. [Wahid Khan v. State of M.P., (2010) 2 SCC 9] placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan [Rameshwar v. State of Rajasthan, AIR 1952 SC 54].
14. Thus, the law that emerges on the issue is to the effect that the statement of the prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
10.2. In Krishan Kumar Malik v. State of Haryana [Krishan Kumar Malik v. State of Haryana, (2011) 7 SCC 130], it is observed and held by this Court that to hold an accused guilty for commission of an offence of rape, the solitary evidence of the prosecutrix is sufficient, provided the same inspires confidence and appears to be absolutely trustworthy, unblemished and should be of sterling quality.
10.3. Who can be said to be a "sterling witness", has been dealt with and considered by this Court in Rai Sandeep v. State (NCT of Delhi) [Rai Sandeep v. State (NCT of Delhi), (2012) 8 SCC 21]. In para 22, it is observed and held as under: (SCC p. 29) "22. In our considered opinion, the "sterling witness" should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co- relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
5.3 In the case of Pankaj Chaudhary (supra), it is observed and held that as a general rule, if credible, conviction of accused can be based on sole testimony, without corroboration. It is further observed and held that sole testimony of prosecutrix should not be doubted by court merely on basis of assumptions and surmises. In paragraph 29, it is observed and held as under:
"29. It is now well-settled principle of law that conviction can be sustained on the sole testimony of the prosecutrix if it inspires confidence. It is well-settled by a catena of decisions of this Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for conviction in a rape case. If the evidence of the victim does not suffer from any basic infirmity and the "probabilities factor" does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. [State of Rajasthan v. N.K. [State of Rajasthan v. N.K., (2000) 5 SCC 30]."
5.4 In the case of Sham Singh v. State of Haryana, (2018) 18 SCC 34, it is observed that testimony of the victim is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of the victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is further observed that seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. In paragraphs 6 and 7, it is observed and held as under:
"6. We are conscious that the courts shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations or sexual assaults. [See State of Punjab v. Gurmit Singh [State of Punjab v. Gurmit Singh, (1996) 2 SCC 384] (SCC p. 403, para 21).]
7. It is also by now well settled that the courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. (See Ranjit Hazarika v. State of Assam [Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635)."
11. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand and as observed hereinabove, we see no reason to doubt the credibility and/or trustworthiness of the prosecutrix. She is found to be reliable and trustworthy. Therefore, without any further corroboration, the conviction of the accused relying upon the sole testimony of the prosecutrix can be sustained.
31. A learned Single Judge of this Court in Criminal Misc. Application under Section 482 Cr.P.C. No. 10125 of 2021 (Bipin Kumar @ Vikky Vs. State of U.P. and another), considered a similar issue as involved in present application. Court noticed the judgements of Supreme Court in Pramod Suryabhan Pawar Vs. State of Maharastra and another, 2019 (9) SCC 608, Maheshwar Tigga Vs. the State of Jharkhand, 2020 (10) SCC 108 and Sonu Vs. State of U.P. and others, 2021 SCC On Line SC 181, dismissed the application by observing as under in paragraph 13 of the report:
" 13. In the present case, when these judgements are examined in the factual backdrop, then it is evident that denial of marriage is on account of family tradition. A grown-up man working in Border Road Organization that too on a responsible post of J.E., is supposed to have knowledge of his family traditions. Therefore, the day when the applicant made a promise, he was aware of the fact that as per his family tradition, he will not be able to marry the girl with whom he is making a promise to marry for extracting a favour of physical relationship. Secondly, the act of the applicant of carrying out ceremony of "ekaxHkjkbZ" is another proof of the fact that he entered into a physical relationship on the solemn promise of entering into a wedlock, whereas from the beginning, the applicant was aware that as per his family traditions and customs, he will not be able to marry the girl in question. Therefore, as has been held in the case of Maheshwar Tigga (supra) wherein paragraph 25 from the case of Uday vs. State of Karnataka, (2003) 4 SCC 46 has been quoted, clearly reflects that if a prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it, is a circumstance where it has been held that it will be difficult to impute to the applicant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In the present case, there is no material available on record to show that prosecutrix was deeply in love with the applicant and that is another distinctive feature of the factual aspect of the present case. In fact there is a qualification to the explanation below Section 375 IPC as has been decided in the case of Deepak Gulati vs. State of Haryana, AIR 2013 SC 2071, wherein it has been held that intercourse under promise to marry constitute rape only if from initial step, accused had no intention to keep promise. The accused can be convicted for rape only if the Court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives. In the present case, as far as intention and motives are concerned, they will be subject to final scrutiny during the trial, but prima facie, two facts namely, knowledge of family traditions of the applicant and another act of the applicant to smear head of the prosecutrix with vermilion, which is not only significant in the Hindu rituals and customs, but also a lot of significance as an intention to show that the person smearing the vermilion has accepted the other person as his spouse, are taken into consideration, then prima facie ratio of the judgements cited by the applicant appears to be not applicable at this stage and therefore, no case is made out for quashing of the charge sheet or the summoning order especially when at the stage of summoning, the court below would only be required to see a prima facie case rather than carrying a detailed scrutiny. "
32. Having heard the learned Senior Counsel for applicant, the learned A.G.A. for State, Mr. Sushil Dubey, the learned counsel for first informant/opposite party-2 and upon perusal of record, this Court finds that it is an undisputed fact that marriage of applicant was already solemnized with Smt. Neetu Singh. There is a clear admission regarding above by applicant in paragraph-16 of the affidavit filed in support of present application under Section 482 Cr.P.C. Therefore, on the date, when the promise to marry the prosecutrix is alleged to have been made by applicant was prima-facie false as no such promise could have been made by applicant during the subsistence of the first marriage. Nothing has been brought on record to show that applicant has divorced his first wife.
33. In view of above, the factual issue as to whether any false promise was made by applicant to marry with prosecutrix or not is an issue of fact, which can be decided only on appraisal and appreciation of evidence by the trial court. This Court in exercise of jurisdiction under Section 482 Cr.P.C. cannot look into the disputed defence of applicant and record a finding one way or the other. In view of above, no benefit can be derived from the judgements of the Apex Court referred to above.
34. Apart from above, this Court finds that the proceedings impugned in present application cannot be faulted on the ground that court-below had no jurisdiction to take cognizance or the proceedings impugned are barred by any provision of law nor there is anything to suggest that applicant could not be summoned by court below. Thus, no jurisdictional issue is involved in present application.
35. Court below has taken cognizance upon the police report (charge-sheet) and summoned the applicant. At the time of taking cognizance, court is required to have a prima-facie satisfaction and not hold a detailed enquiry and pass a reasoned order of taking cognizance. As such, no illegality can be attached to the Cognizance Taking Order passed by court-below.
36. A challenge to the charge-sheet has been laid but in vain. There is no pleading with regard to material irregularity or defect in investigation of concerned case crime number. Charge-sheet is the outcome of investigation. Thus, when no illegality or irregularity in investigation could be established, the resultant charge-sheet cannot be challenged.
37. As already noted above, at the time of taking cognizance/summoning of an accused, only prima-facie case has to be seen. For the facts and reasons noted above, it cannot be said that no prima-facie case is made out against applicant. It is again reiterated that applicant is a married man as admitted by him in paragraph 16 of the affidavit filed in support of the present application. The allegation against applicant is that he has dislodged the modesty of the prosecutrix after extending her a false promise of marriage. The statement of the prosecutrix under Section 164 Cr.P.C, is clear, categorical and unambiguous in that regard. It is not the case of applicant that present criminal proceedings are accentuated by malafide on the part of the prosecutrix nor there is any pleading evidenced by document to dislodge the very credibility of the prosecutrix. Therefore, whether the alleged false promise was extended or not and whether on the basis of same, the modesty of prosecutrix was dislodged by applicant or not are such factual issues, which can be adjudicated effectively only during the course of trial.
38. At this stage, as prima-facie case is made against applicant, this Court by virtue of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283 cannot quash the criminal proceedings impugned in present application.
39. In view of the discussion made above, present application fails and is liable to be dismissed.
40. It is accordingly dismissed.
Order Date :- 01.08.2022 Saif/ YK