Amitesh Kumar Varma @ Atul vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 20021 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:50595
 
Court No. - 15
 
Case :- CRIMINAL APPEAL No. - 576 of 2023
 
Appellant :- Amitesh Kumar Varma @ Atul
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lko. And Another
 
Counsel for Appellant :- Shyam Mohan Upadhyay,Manoj Kumar Mishra
 
Counsel for Respondent :- G.A.
 
Hon'ble Shamim Ahmed,J.

1. Counter affidavit filed on behalf of State is on the record.

2. Learned counsel for the appellant submits that he is not willing to file any rejoinder affidavit in reply to the counter affidavit filed on behalf of State and wants to argue the case on merits.

3. As per the office report dated 23.02.2023 notice sent to the opposite party No. 2 has been served personally in compliance of the order dated 23.02.2023.

4. On 06.07.2023 this Court has passed the following order:

Learned counsel for the appellant and Sri Ashok Kumar, learned A.G.A.-I for the State are present.

Learned A.G.A.-I for the State prays for and is granted two weeks and no more further time to file counter affidavit.

As per office report dated 27.03.2023, notice has already been served upon opposite party no.2 but neither any counter affidavit has been filed till date nor any counsel is present to represent the opposite party no.2.

As a last opportunity, two weeks and no more time is granted to opposite party no.2 for filing counter affidavit.

One week thereafter is allowed to learned counsel for the appellant for filing rejoinder affidavit.

Put up this case on 01.08.2023.

5. Despite the aforesaid order dated 06.07.2023, today when the case is taken up in the revised call, neither any counsel has appeared nor any counter affidavit has been filed on behalf of opposite party No. 2. It appears that opposite party No. 2 is not interested to contest the case.

6. Considering the above mentioned circumstances and considering the fact the present matter pertains to bail and is an urgent matter, therefore, this Court is of the view to decide the same finally after hearing the learned counsel for the parties.

7. Heard Shri Shyam Mohan Upadhyay, the learned counsel for the appellant, Ms. Kamlesh Kumari, the learned A.G.A. for the State-opposite party No. 1 and perused the record.

8. The present criminal appeal under Section 14-A (2) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has been preferred by the appellant, Amitesh Kumar Varma @ Atul, against the impugned order dated 01.02.2023 passed by the learned Special Judge, (S.C./S.T. Act), Barabanki in Bail Application No. 421 of 2023, arising out of Case Crime No. 24 of 2023, under Sections 376, 504, 506 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Dewa, District Barabanki, whereby bail application of the appellant has been rejected.

9. Learned counsel for the appellant submits that appellant is innocent and has falsely been implicated in the case due to enmity and financial dispute.

10. Learned counsel for the appellant further submits that father of prosecutrix has taken a loan of Rs. 1,60,000/- from the father of appellant and when his father demanded the said money the mother of prosecutrix lodged a F.I.R. dated 15.06.2022 against the appellant and his entire family members under Sections 504, 506, 406 I.P.C. and Section 3(2)(va), 3(1)Da, 3(1)Dha of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act with the allegation that some amount is due against the father of appellant, but in the said F.I.R. there is no whisper that appellant was committing rape of her daughter.

11. Learned counsel for the appellant further submits that when the father of prosecutrix could not succeed in his malafide intention the present F.I.R. has been lodged by him against the appellant with the allegation that appellant committed rape of prosecutrix on false promise of marriage, whereas, prosecutrix in her statements recorded under Sections 161 & 164 Cr.P.C. has repeated almost same version but she has also admitted this fact that appellant and the prosecutrix have solemnized marriage in Vaivahik Sewa Samiti and kept her for 8 to 10 months with him, but later on, on the pressure created by the family members of the appellant he did not take her to his house. In her statement recorded under Section 164 Cr.P.C. the prosecutrix also admitted this fact that the present F.I.R. has been lodged to create pressure upon the appellant so that appellant take her to his house.

12. Learned counsel for the appellant further submits that no such incident took place as alleged by the prosecution and it was only in respect of financial dispute which was going on between the father of appellant and father of prosecutrix. In this regard a civil suit bearing Civil Suit No. 892 of 2022 is pending between the father of appellant and father of prosecutrix before the court of learned Civil Judge (Junior Division), Court No. 13, Barabanki. Thus, the learned counsel for the appellant has argued that the entire prosecutrix story has been made with malafide intention to implicate the appellant falsely.

13. Learned counsel for the appellant further submits that even though if it is assumed that appellant has made false promise of marriage and he has developed physical relations with the prosecutrix, that too on her own consent and the consent was not given under any misconception of fact, even though if it is believed that the prosecutrix had consented to having physical relations with the appellant only as a consequences of her belief based on the promise made by the appellant that they both got married in future, there was hardly any evidence to prove this fact. Further, it is not the case of prosecutrix that the intention of the appellant was mala fide and that he had clandestine motives, the relation, if any made appears to be on the sweet will of the prosecutrix, then this will not come in the purview of rape as has been held by Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another : (2019) 9 SCC 608 and placed reliance upon paras-17 and 21 of the said judgment which reads as under:

17. In Uday v State of Karnataka the complainant was a college going student when the accused promised to marry her. In the complainants statement, she admitted that she was aware that there would be significant opposition from both the complainants and accuseds 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 accuseds promise to marry the complainant was not of immediate relevance to the complainants decision to engage in sexual intercourse with the accused, which was motivated by other factors:[(2003) 4 SCC 46].

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 (Emphasis supplied).

21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellants failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellants promise of marriage. Therefore, even if the facts set out in the complainants statements are accepted in totality, no offence under Section 375 of the IPC has occurred.

14. Learned counsel for the appellant has also placed reliance on the Hon'ble Apex Court judgment in the case of Deepak Gulati Vs. State of Haryana : (2013) 7 SCC 675 and placed reliance upon paras-14 to 18 thereof, which are as under:

14. The undisputed facts of the case are as under: I. The prosecutrix was 19 years of age at the time of the said incident.

II. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married.

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

IV. 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.

V. 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.

15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the Act 1872) 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 Act 1872 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, alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 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.

16. This Court considered the issue involved herein at length in the case of Uday v. State 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 accuseds 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.

17. 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.

18. 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 mis-representation 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.

15. Learned counsel for the appellant has argued that in view of the aforesaid judgment no case under Section 376 I.P.C. is made out against the appellant. Further allegations of rape on false promise of marriage made by the prosecutrix in her statements recorded under Section 161 and 164 Cr.P.C. as well in the F.I.R. appear to have been made with her consent. The prosecutrix is major and she knew consequences very well. The parties were consenting to each other and sexual relations were made between them for a long time with the consent of prosecutrix, therefore, he may be enlarged on bail by this Court sympathetically and the present appeal may be allowed.

16. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the appellant has no previous criminal history, which fact has been stated in para-26 of the affidavit filed in support of the bail application. It has been argued that the appellant is in jail since 24.01.2023 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

17. Learned A.G.A. for the State opposed the prayer for bail but he has not disputed that prosexcutrix in her statements recorded under Sections 161 & 164 Cr.P.C. has herself admitted that appellant has performed marriage with the prosecutrix in Vaivahik Sewa Samiti and she has also admitted that she has lodged the present F.I.R. only to create pressure upon the appellant so that he take her to his house.

18. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also in absence of any convincing material to indicate the possibility of tampering with the evidence and considering the fact that there appears force in the arguments of learned counsel for the appellant that earlier father of prosecutrix has taken a loan of Rs. 1,60,000/- from the father of appellant and when his father demanded the said money the mother of prosecutrix lodged a F.I.R. with the allegation that some amount is due against the father of appellant, but in the said F.I.R. there is no whisper that appellant was committing rape of her daughter; further prosecutrix in her statements recorded under Sections 161 & 164 Cr.P.C. has also admitted this fact that appellant and the prosecutrix have solemnized marriage in Vaivahik Sewa Samiti and he kept her for 8 to 10 months with him, but later on, on the pressure created by the family members of the appellant he did not take her to his house and she also admitted this fact that the present F.I.R. has been lodged to create pressure upon the appellant so that appellant take her to his house; further there appears force in the arguments of learned counsel for the appellant that no such incident took place as alleged by the prosecution and it was only in respect of financial dispute which was going on between the father of appellant and father of prosecutrix for which Civil Suit No. 892 of 2022 is pending between them, thus the entire prosecution story has been made with malafide intention to implicate the appellant falsely; further prosecutrix had consented to having physical relation with the appellant only as a consequences of her belief based on the promise made by the appellant that they both got married in future, there was hardly any evidence to prove this fact and even though the promise, if any, was made in bad faith or with the intention to deceive the prosecutrix, this was not the case of the prosecution; it is not the case of prosecutrix that the intention of the applicant was mala fide and that he had clandestine motives; the relation, if any, made appears to be on the sweet will of the prosecutrix; further considering the judgment of Hon'ble Supreme Court in the cases of Pramod Suryabhan Pawar (supra) and Deepak Gulati (supra), as well as considering the larger mandate of the Article 21 of the Constitution of India and further the law laid down by the Hon'ble Apex Court in the cases of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record and the impugned order passed by the court below is liable to be set aside.

19. Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 01.02.2023 passed by the learned Special Judge, (S.C./S.T. Act), Barabanki in Bail Application No. 421 of 2023, arising out of Case Crime No. 24 of 2023, under Sections 376, 504, 506 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Dewa, District Barabanki, is hereby reversed and set aside.

20. Let the appellant, Amitesh Kumar Varma @ Atul, be enlarged on bail in Case Crime No. 24 of 2023, under Sections 376, 504, 506 I.P.C. and Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Police Station Dewa, District Barabanki, with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

21. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

Order Date :- 1.8.2023

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