Bombay High Court
Bhaskar S/O Lakhanlal Mankar vs State Of Mah. Thr. Pso Ps Tiroda ... on 20 August, 2024
2024:BHC-NAG:9321
57.apeal.212.2024.judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.212 OF 2024
Bhaskar s/o Lakhanlal Mankar,
Aged about 34 Years,
Occupation - Labour,
Resident of Sarkartola,
Tahsil Amgaon,
District Gondia. ..... APPELLANT
// VERSUS //
01. The State of Maharashtra,
Through Police Station Officer,
Police Station, Tiroda,
District Gondia.
02. XYZ - Victim in Crime
No.139/24 registered at
Police Station, Tiroda,
District Gondia. .... RESPONDENTS
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Mr. Atharva S. Manohar, Counsel for the appellant.
Ms. Sneha Dhote, APP for respondent No.1/State.
Ms. Anuprita S. Mishrikotkar, appointed Counsel for the
respondent No.2.
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CORAM : URMILA JOSHI-PHALKE, J.
DATED : 20.08.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
57.apeal.212.2024.judgment.odt
3. By preferring this appeal, the appellant has
challenged the order dated 27.03.2024 passed by the
District Judge - 1 and Additional Sessions Judge, Gondia by
which he has rejected the bail application for grant of
anticipatory bail bearing Misc. Criminal Application
No.87/2024.
4. Learned Counsel for the appellant submitted that
the appellant is prosecuted for the offence punishable under
Section 493 of the Indian Penal Code and under Sections
3(1)(w)(i), 3(1)(w)(ii), 3(2)(v) of the Scheduled Castes and
the Scheduled Tribes (Prevention of Atrocities) Act, 1989
(hereinafter referred as to 'the Act of 1989'). He submitted
that from the recitals of the FIR it reveals that there was a
friendship between the present appellant and the victim
which resulted into a love affair. The said relationship was
for a long period and out of the said relationship, there was
a physical relationship. He submitted that it was a
consensual physical relationship between them out of a love
affair and as the family members of the appellant denied to
perform the marriage, the report is came to be filed. He
submitted that as per the allegations, the appellant has
pretended that marriage is performed with the victim and
57.apeal.212.2024.judgment.odt
therefore, it was alleged that on the promise of marriage
and by pretending that he had performed the marriage
there was a physical relationship between the victim and
the appellant, the offence came to be registered. He invited
my attention towards the statement of the victim as well as
the statements of the other witnesses and submitted that
from which it reveals at her own accord she stayed along
with the present appellant therefore, offence under Section
493 of the Indian Penal Code is not made out, in view of
that the interim protection granted to the present appellant
deserves to be confirmed.
5. Learned APP and learned appointed Counsel for
the respondent No.2 - victim strongly opposed the said
appeal and submitted that since inception, there was an
intention to cheat the victim and therefore, it was pretended
that he had performed the marriage and subjected her for
sexual assault.
6. Heard learned Counsel for both the parties,
perused the recitals of the FIR. It reveals from the recitals
of the FIR that there was a love affair between the victim
and the present appellant and out of that they had a
57.apeal.212.2024.judgment.odt
physical relationship. She stayed along with the appellant
also. It appears there was a marriage performed between
the present appellant and the victim. As far as the breach
of the promise or intention since inception is concerned, the
observation of the Hon'ble Apex Court in the case of
Dr. Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra and Others [Arising out of SLP (Cri.)
No.6532 of 2018] is relevant wherein it is observed by the
Hon'ble Apex Court. "Thus, there is a clear distinction
between rape and consensual sex. The court, in such cases,
must very carefully examine whether the appellant 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
57.apeal.212.2024.judgment.odt
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."
7. Admittedly, in the present case offence is not
registered against the present appellant under Section 376
of the Indian Penal Code, but it was alleged that the offence
is made out under Section 493 of the Indian Penal Code. If
Section 493 of the Indian Penal Code is seen it dealt with
the cohabitation caused by a man deceitfully inducing a
belief of lawful marriage. It further states that every man
who by deceit causes any woman who is not lawfully
married to him to believe that she is lawfully married to him
and to cohabit or have sexual intercourse with him in that
belief, shall be punished with imprisonment of either
description for a term which may extend to ten years, and
shall also be liable to fine. The said offence is
non-cognizable and non-compoundable.
8. Considering the statement of the victim it reveals
that as per her allegation the appellant has taken her in one
temple on 03.12.2023 and by garlanding her as well as by
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wearing the Mangalsutra it was pretended that she
performed the marriage with her. It reveals from one
statement that they have also obtained the photographs of
the said incident in the mobile phone of the present
appellant. Thus, by considering the entire statement of the
victim it reveals that she was fully aware that she was
residing along with the present appellant and there was a
physical relationship between them by understanding all
these things. As far as the custodial interrogation is
concerned, which is not required. It appears to be a
consensual act of the victim and the present appellant. In
view of that the appellant has made out a case for grant of
anticipatory bail. Accordingly I proceed to pass following
order:
ORDER
(i) The appeal is allowed.
(ii) The order dated 27.03.2024 passed by the
learned District Judge -1 and Additional Sessions
Judge, Gondia rejecting the bail application is hereby
quashed and set aside.
(iii) The interim protection granted to the present
appellant by order dated 15.04.2024 is hereby
confirmed on executing PR Bond of Rs.25,000/- with
one solvent surety in the like amount.
57.apeal.212.2024.judgment.odt
(iv) The appellant shall not enter into the vicinity of
Thanegaon, Taluka Tiroda, District Gondia, till
culmination of the trial.
(v) The appellant shall attend the concerned Police
Station once in a week on every Sunday between
10.00 a.m. to 1.00 p.m. and shall cooperate with the
investigating agency.
(vi) The appellant shall furnish his cell phone
number and address with address proof before the
Investigating Officer.
(vii) The appellant shall not directly or indirectly
make any inducement, threat or promise to any
person acquainted with the facts of the case.
9. The fees of the appointed Counsel be quantified as per
rules.
10. The appeal is disposed of.
(URMILA JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 22/08/2024 15:03:39
