Savej @ Sebi vs State Of U.P.
2019 Latest Caselaw 1724 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10327 of 2019
 

 
Applicant :- Savej @ Sebi
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Amit Daga,Sumit Daga
 
Counsel for Opposite Party :- G.A.,A.Z.Khan
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Supplementary affidavit filed on behalf of the applicant in Court today is taken on record.

2. Heard Sri Amit Daga, learned counsel for the applicant, Sri A.Z. Khan, learned counsel for the complainant and Sri Om Prakash Mishra, Chauhan, learned A.G.A. for the State.

3. Perused the material on record.

4. The present bail application has been filed by the applicant-Savej @ Sebi with a prayer to enlarge him on bail in Case Crime No. 229 of 2018, under Sections 323 and 376 I.P.C., Police Station-Chilkana, District-Saharanpur, during the pendency of the trial.

5. It has been argued by learned counsel for the applicant that the first information report has been lodged by the father of the victim, namely, Mehboob on 10th July, 2018 alleging therein that the applicant was in relation with the victim since last five years and on promise to marry her, the applicant has established physical relations with the victim but when the victim exerted pressure upon the applicant to marry her, the victim was beaten by the applicant and told that she can do whatever she can. In the statement given by the victim before the Doctor on 10th July, 2018, it has been stated that the victim was having affair with the applicant since last five years but he refused to marry her and again last night, the victim was called by the applicant and again on promise to marry her, the applicant had established physical relations with the victim. In the statement recorded under Section 161 Cr.P.C. on 11th July, 2018, the victim has reiterated the same version as unfolded in the first information report. Apart from the above statement/version, in the statement recorded under Section 164 Cr.P.C. on 20th July, 2018, the victim has accepted relations with the applicant since last five years and has stated that when the applicant refused to marry her, she was married with another person. Because of relation with the applicant, she was given divorce after which on 9th July, 2018 at about 10:00 p.m. (night), she was called by the applicant by telephone and she went to his house. The applicant told the victim that he would convince his mother for materializing the marriage and then he closed the door from inside and raped her forcibly and beat up. His family also beat her at that point of time.

6. It has been further argued by the learned counsel for the applicant that for quashing of the first inforamtion report dated 10th July, 2018, the applicant approached this Court earlier by means of Criminal Misc. Writ Petition No. 19279 of 2018. The writ petition was disposed of vide order dated 20th July, 2018 providing that the applicant shall not be arrested till submission of the police report in terms of Section 173 (2) Cr.P.C.

7. It has been next argued by the learned counsel for the applicant that in the meantime, another first information report was lodged by the father of the victim on 22nd September, 2018 for the incident dated 20th September, 2018, which was registered as Case Crime No. 318 of 2018, under Sections 328 and 302 I.P.C., Police Station Chilkana, District-Saharanpur. The statement of the first informant i.e. the father of the victim was recorded wherein he has stated that the victim was in relation with the applicant since last five years and then on fear of defamation, he solemnized the marriage of the victim with one Naushad. It has also been stated that the applicant never permitted her husband to even touch her due to which the husband of the victim, namely, Naushad told the first informant that the victim did not want to stay with her as she had an affair with another person, hence divorce was given on 2nd July, 2018 by mutual consent. It has been further stated that on 9th July, 2018 the applicant called the victim to his house, where he beat her and when the victim dialed 100 number, the Police left her to her parental house. Next day i.e. 10th July, 2018, present first information report qua the sexual assault being committed by the applicant upon the vicitm has been lodged by the first informant against the applicant. It has stated that due to misconduct of the applicant time and again the victim committed suicide by consuming some poisonous substance and during the course of treatment, the victim expired on 22nd Seprember, 2018. Statement of the Doctor, who was treating the victim, will go to show that the victim consumed some poisonous substance by herself. For the aforesaid incident of the victim committing suicide, first information report dated 22nd September, 2018 has been lodged by the first informant i.e. the father of the victim and the same was registered as Case Crime No. 318 of 2018, under Sections 328 and 302 I.P.C., Police Station Chilkana, District-Saharanpur.

8. It has been pointed out by the learnd counsel for the applicant that the applicant approached this Court by means of Criminal Misc. Bail Application for seeking his enlargment on bail in the Case Crime No. 318 of 2018. The Court vide order dated 6th March, 2019 has granted bail to the applicant, a copy of which is on record at page- 20 of the Supplementary Affidavit filed today.

9. Seeing the statements of the victim under Sections 161 and 164 Cr.P.C. as well as statement of the victim before the Doctor on 10th July, 2018, it has been submitted by the learned counsel for the applicant that she was in relation with the applicant since last five years and under promise of marriage, she had established physical relations with the applicant. Statement of the Doctor, who treated the victim, will go to show that under depression, she had consumed poison. She was not happy from her marriage with another person. She pressurized the applicant to marry her, to which the family of the applicant was never agreeing. She appears to be consenting with the applicant and she has committed suicide under depression by consuming some poisonous sustance herself.

10. In support of his case, learned counsel for the applicant has placed reliance upon the judgments of the Apex Court in the cases of Udai Versus State of Karnataka reported in (2003) 4 SCC 46 and Dr. Dhruvaram Murlidhar Sonar Versus The State of Maharashtra & Ors. (Criminal Appeal no. 1443 of 2018, decided on 22nd Novemer, 2018).

11. In Udai (Supra) in paragraph nos. 23, 24 and 25, the Apex Court has held as follows:

"23. Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.

24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her.

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, is 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. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the 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. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

12. In Dr. Dhruvaram Murlidhar Sonar (Supra) in paragraph

"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant 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 later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.

21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained"

13. In view of the law laid down by the Apex Court in the aforesaid cases, the learned counsel for the applicant that the parties are consenting and the applicant has not committed any offence for punishable under Section 376 Cr.P.C. As such the present applicant is liable to be enlarged on bail.

14. Apart from the above, it has been lastly contended by the learned counsel for the applicnat that as per the medical examination report the victim was 20 years old. The applicant has no criminal antecedents to his credit except the present one. It is next contended that there is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. The applicant is in jail since 5th January, 2019.

15. Per contra learned A.G.A. for the State as well as the learned counsel for the complainant have opposed the bail prayer of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail. However, neither the learned A.G.A. for the State nor the learned counsel for the complainant could dispute the factual as well as legal submissions as urged by the learned counsel for the complainant.

16. Considering the facts and circumstances of the case as well as submissions made by learned counsel for the parties and also perusing the material on record, without expressing any opinion on merit of the case, let the applicant involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions:-

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

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial 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.

(iv) 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 absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(Manju Rani Chauhan, J.)

Order Date :- 27.3.2019

Sushil/-