Deepak Kumar vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 13845 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 14
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11047 of 2022
 
Applicant :- Deepak Kumar
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home
 
Counsel for Applicant :- Vinay Prakash Katiyar,Praveen Kumar Srivastav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

1. Heard learned counsel for the applicant and Shri Hari Shankar Vajpayee, the learned A.G.A.-1 for the State and perused the record.

2. The applicant, Deepak Kumar, has moved the present bail application seeking bail in Case Crime No. 0246 of 2022, under Sections 376, 493, 323, 504, 506 I.P.C., Police Station Mahmoodabad, District Sitapur.

3. Learned counsel for the applicant submits that the applicant has falsely been implicated in the case with malafide intention. No such incident, as alleged by the prosecution, took place.

4. As per version of the F.I.R. the applicant made physical relation for two years with the prosecutrix on false promise of marriage and when the prosecutrix pressurised him to solemnize marriage with her, he refused for the same.

5. The learned counsel for the applicant submits that the victim is a mature lady aged about 23 years, and she willingly meet the applicant. They knew each other and had friendly relationship. No rape was committed on her and it was a consensual act. It was a consented physical relation on the part of the victim as she was in love with the applicant.

6. Learned counsel for the applicant has drawn attention of the Court to a judgment of Hon'ble Supreme Court in the case of Mandar Deepak Pawar Vs. The State of Maharashtra (Criminal Appeal No. 442 of 2022, decided on 27.07.2022) and has placed reliance on the following paragraph of the said order which is as under:

We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the F.I.R. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860.

The Criminal appeal is accordingly allowed. Impugned judgment is set aside and the proceedings in pursuance to FIR dated 16.12.2016 stand quashed, leaving parties to bear their own costs.

7. Learned counsel for the applicant while relying upon the above judgment submits that no case under Section 376 I.P.C. is made out against the applicant and he should be released on bail.

8. Learned A.G.A. opposed the prayer for bail and submits that applicant is involved in a heinous crime; the applicant has played fraud with the prosecutrix by misrepresentation of fact as he was the boy of 19 years and was not even mature for marriage, and without disclosing this fact he has committed rape of the victim several times on false promise of marriage without her consent and the case against the applicant under Section 376 I.P.C. is made out very well.

9. I have heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.

10. Section 114-A of the Evidence Act provides as follows:

"Presumption as to absence of consent in certain prosecutions for rape-- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Penal Code, 1860, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent."

11. In the case of Dr. Dhruvaram Murlidhar Sonar: (2019) 18 SCC 191, the Supreme Court has observed that there is a clear distinction between rape and consensual sex and, in such cases, it must be very carefully examined 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. The Supreme Court after referring to various decisions has observed as follows:

"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."

It has been settled view that the question whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under "misconception of fact" depends on the facts of each case. While considering the question of consent, the Court must consider the evidence before it and the surrounding circumstances before reaching a conclusion. Evidence adduced by the prosecution has to be weighed keeping in mind that the burden is on the prosecution to prove each and every ingredient of the offence. Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from inception and that promise made was false to his knowledge.

12. In Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1:AIR 2019 SC 1857, the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had physical relationship with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant's marriage is fixed with another lady, she and her family members would continue to pressurize the accused to marry and the prosecutrix will give the consent for physical relation. Even considering Section 114A of the Evidence Act which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. From the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. The Supreme Court after having discussed the law on the point held as follows:

"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 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 Section 375of the IPC and can be convicted for the offence under Section 376 of the the IPC."

13. Considering the facts and circumstances of the case it is clearly evident that applicant made a false promise of marriage to the victim after concealment of fact that he was a boy of 19 years and was not mature for marriage and the promise of marriage was false from the very inception, applicant never intended to fulfill his promise of marriage and the same was with malafide and with motive to allure and emotionally pressurize the victim for making physical relation as was also observed by the Hon'ble Apex Court in case of Anurag Soni (supra) and also in case of Dr. Dhruvaram Murlidhar Sonar (supra). The Hon'ble Apex Court's judgment in the case of Mandar Deepak Pawar (supra) referred by the learned counsel for the applicant is not applicable in the facts of the present case.

14. In view the facts and circumstances of the case and the law laid down by Hon'ble Supreme Court in numerous cases, this court is of the view that the applicant/ accused does not deserve any sympathy and this Court finds no cogent reason to entertain this bail application.

15. Accordingly, the prayer of bail is refused.

16. The bail application is rejected.

Order Date :- 27.9.2022

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