Deepak Soni vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 21905 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 10
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11714 of 2022
 
Applicant :- Deepak Soni
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Home, Lko. And 3 Others
 
Counsel for Applicant :- Rudra Mani Shukla,Girish Chandra Sinha
 
Counsel for Opposite Party :- G.A.,Ashish Kumar Shukla,Ram Pratap Yadav
 
[
 
Hon'ble Dinesh Kumar Singh,J.

1. Heard learned counsel for the parties and gone through the entire record.

2. By means of this application under Section 439 CrPC, the accused-applicant seeks bail in FIR No.0224 of 2022, under Sections 354, 363, 366, 376, 511 and 506 IPC read with Sections 3(1)d, dh and Sections 3(2),5A SC/ST Act and Sections 3/4 and 7/8 POCSO Act lodged at Police Station Gauriganj, District Amethi.

3. The FIR came to be registered pursuant to order passed on an application under Section 156(3) CrPC filed by the prosecutrix. As per allegation in the FIR, the accused-applicant established physical relation with the prosecutrix six years before the date of incident on pretext of marrying her; the prosecutrix was working in Sanjay Gandhi Hospital, Amethi as nurse.

4. Learned counsel for the accused-applicant submits that this case is squarely covered with the judgment reported (2013) 7 SCC 675 Deepak Gulati Vs. State of Haryana. The learned counsel further submits that the accused-applicant is in jail since 20.08.2022 on false allegation; nobody would wait for six years to get married and would continue to have relation that too sexual relation with the present accused-applicant.

5. On the other hand, Mr. Ashish Kumar Shukla, learned counsel for the complainant and Ranvijay Singh, learned Additional Government Advocate, have opposed the bail and submitted that the prosecutrix was not major when the accused-applicant established physical relation with her on pretext of marrying her and he continued to make false promise with the prosecutrix and exploited the prosecutrix sexually.

6. I have considered the submissions advanced by the learned counsel for the parties.

7. In Deepak Gulati Vs. State of Haryana (supra), the following (relevant portion) has been held:-

"15. The FIR in the present case has been registered under Sections 365 and 366 IPC, by Baldev Raj Soni (PW.8), father of the prosecutrix, naming several persons, including the appellant, accusing them of enticing his daughter and wrongfully confining her at an unknown place. Thus, he has expressed his apprehension with respect to danger to the life of his daughter.

16. Admittedly, the prosecutrix has never raised any any person at any stage. In fact, she seems to have submitted to the will of the appellant, possibly in lieu of his promise to marry her. Thus, a question arises with respect to whether, in light of the facts and circumstances of the present case, the appellant had an intention to deceive her from the very beginning when he had asked the prosecutrix to leave for Kurukshetra with him from Karnal.

17. The undisputed facts of the case are as under:

17.1. The prosecutrix was 19 years of age at the time of the said incident.

17.2. She had towards the and had willingly gone with him to Kurukshetra to get married.

17.3. The appellant had been giving her assurance of the fact that he would get married to her.

17.4. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another.

17.5. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.

18. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as "the 1872 Act" ) provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the 1872 Act be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, the provisions of Section 90 IPC. Section 90 IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.

19. This Court considered the issue involved herein at length in Uday v. of Karnataka, AIR 2003 SC 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, AIR 2005 SC 203; Yedla Srinivasa Rao v. State of A.P., (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059, and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.

20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks.

21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

22. In Deelip Singh (supra), it has been observed as under:

"19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."

23. This Court, while deciding Pradeep Kumar (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, In re, wherein it has been observed : (Pradeep Kumar case, SCC pp. 418-19, para 11)

"11. ''26......."....We are of opinion that the expression ''under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married........'thus ... if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person'....... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." ( N.Jaladu, In re case, ILR pp. 456-57)' (Deelip Singh Case, SCC pp. 101-02, para 26)."

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.

25. The instant case is factually very similar to Uday( Uday Vs. State of Karnataka (2003) 4 SCC 46), wherein the following facts were found to exist :

25.1. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to.

25.2. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor.

25.3. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her.

25.4. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix.

26. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived she went with him to Karna Lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to anyone. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in the court at Ambala. However, here they were apprehended by the police.

27. If the prosecutrix was going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be levelled against the appellant, in light of the aforementioned fact situation."

8. Six years is a long period to wait for marriage and continue with physical relation with the accused-applicant. Considering the judgment in Deepak Gulati Vs. State of Haryana (supra) and facts & circumstances of the case, I find it to be a fit case for grant of bail.

9. Let applicant- Deepak Soni, accused of above-mentioned FIR/crime number, be released on bail on his furnishing a personal bond and two local and reliable sureties each in the like amount to the satisfaction of the Court concerned with the following conditions, which are imposed in the interest of justice:-

(i) the applicant(s) 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(s) 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(s) misuse(s) the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant(s) fail(s) 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; and

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

[D.K. SINGH, J]

Order Date :- 20.12.2022

MVS/-