The Bombay High Court set aside the impugned order in which it was held that the present case is not of consensual sexual intercourse, but as per the complaint filed by the prosecutrix, sometimes it was forcible, also.
A single judge bench of this Court comprising Hon’ble Justice Bharati Dangre held that when two mature persons come together and invest in a relationship, one cannot be blamed only because the other complained of the rape at some point of time when the relationship did not go well and for whatever reason need not ultimately culminate into a marriage.
Brief Facts:
By the present Revision Application, the Applicant had raised a challenge to the order dated 01.03.2019 passed by the Additional Sessions Judge, rejecting an application for discharge filed by the Applicant, on the ground that the present case is not of consensual sexual intercourse, but as per the complaint filed by the prosecutrix, some time it was forcible, also.
The background of the case is that the subject CR came to be registered on the complaint filed by the complainant/prosecutrix, aged 27 years, who, by lodging, the complaint on 17.02.2016 reported that, in the year 2008 she was introduced to the Applicant. In the year 2013, the friendship was nurtured into a bond of love, and the Applicant promised her that he will perform marriage with her.
The complainant stated that whenever she used to visit his house, on the promise of performance of marriage, the Applicant used to commit forcible intercourse with her and thereafter at various places in Mumbai, sometimes at his home or her house, by consent or forcibly, physical relationship was established. The above complaint resulted in invoking offence under Section 376, 323 of the Indian Penal Code and Section 67 of the Information Technology Act.
Observations of the Court:
The Court observed that the prosecutrix was in a relationship with the Applicant for almost a period of 8 years. From the reading of the complaint, it was clear to the Court that the Applicant’s promise to marry the prosecutrix was not the only reason for permitting the Applicant to have sexual indulgence, as according to her own version, she was in love with the Applicant.
This Court relied on the Hon’ble SC judgement in Pramod Suryabhan Pawar vs. State of Maharashtra & Anr (2019) 9 SCC 608 to draw a distinction between a false promise to marry and not fulfilling a promise to marry. In view of this Court, from the statement of the prosecutrix in the FIR and the statement under Section 164 Cr.P.C. it cannot be inferred that there was failure to perform the marriage and the promise was not fulfilled. In any case, the physical relationship maintained with the prosecutrix was not solely on the promise of marriage, but since she was in love with the Applicant, she permitted him to indulge physically and this was repeated on several occasions, according to her own version.
Regarding offence under Section 323 of the IPC, the Court noticed that a bare allegation is made to the effect that the prosecutrix was assaulted, without any details being furnished and the said allegation is as vague as it could be. Therefore, two mature persons coming together and investing in a relationship, one cannot be blamed only because the other complained of the act at some point of time when the relationship did not go well and for whatever reason need not ultimately culminate into a marriage. In the wake of the above, the impugned order dated 01.03.2019 was set aside.
The decision of the Court:
The Bombay High Court allowing the revision application held that when two mature persons come together and invest in a relationship, one cannot be blamed only because the other complained of the act when their relationship turned sour.
Case Title: Sameer Amrut Kondekar vs State of Maharashtra and anr.
Coram: Hon’ble Justice Bharati Dangre
Case no.: REVISION APPLICATION NO.408 OF 2019
Advocate for the Applicant: Mr.Girish Kulkarni
Advocate for the Respondent: Ms.P.N. Dabholkar
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