Bombay High Court
Shri Dhananjay @ Karan S/O Vilas ... vs State Of Mah. Thr. Pso Ps Devalapar ... on 4 September, 2024
2024:BHC-NAG:10097
J.55.cri.appeal.298.24.odt 1/7
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.298 OF 2024
Shri Dhananjay @ Karan s/o Vilas Hiwarkar,
Aged 29 years, Occupation - Agriculture,
Aadhar No. 4482 7877 8054
R/o At Post Malegaon, Tah.Saoner,
District Nagpur
...APPELLANT
VERSUS
1. State of Maharashtra,
through the Police Station Officer,
P.S. Devalapar, District Nagpur
2. The Sub-Divisional Police Officer,
Sub-Division Ramtek,
District Nagpur
3. Ku. Madhuri @ Mamta Chandu Warthi
Aged 28 years,
R/o Behind Aadiwasi Bhawan
Katta, Post Deolapar,
Tal. Ramtek, District Nagpur
...RESPONDENTS
_______________________________________________________
Mr. P.S. Khubalkar, Advocate for the appellant.
Mr. U.R. Phasate, APP for the State.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : SEPTEMBER 4, 2024.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel
for the parties.
J.55.cri.appeal.298.24.odt 2/7
2. This is an appeal under Section 14A of the Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989, the appellant
has challenged the order dated 30/04/2024 passed by the Additional
Sessions Judge-8 and Special Judge, Scheduled Caste and Scheduled
Tribes (Prevention of Atrocities) Act in Criminal Bail Application
No.1015/2024 by which the application of the present appellant for
grant of anticipatory bail is rejected.
3. The appellant is apprehending arrest at the hands of police
in connection with Crime No.0111/2024 registered with Devalapar
Police Station, District Nagpur for the offence punishable under Sections
376(2)(n), 506 of IPC read with Section 3(1)(w)(i), 3(1)(w)(ii), 3(2)
(v), 3(2)(va) of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities Act), 1989 (hereinafter referred to as 'the Atrocities Act' for
short).
4. The accusation against the present appellant is on the basis
of report lodged by the victim who is 27 years old and alleges that she
belongs to Scheduled Tribe. There was a love affair between her and the
present appellant. The appellant promised her for marriage and their
marriage was also settled. Engagement ceremony was also performed
but on 13/02/2024 at about 10 AM the appellant came to her house and
in absence of her parents by taking disadvantage of the same subjected
J.55.cri.appeal.298.24.odt 3/7
her for forceful sexual assault on the promise of marriage. She further
alleged that prior to that incident also on 16/02/2023 when her parents
were in the house he subjected her for forceful sexual assault on the
promise of marriage and subsequently he denied to perform the
marriage. On the basis of said report, police have registered the crime
against the present appellant.
5. Learned Counsel for the appellant submitted that as far as
sexual relationship between the appellant and the victim is concerned, it
is admittedly by consent as there was a love affair between them. At the
most it can be termed as breach of promise but it is not an intentional
act of the present appellant to subject the informant for sexual assault.
He submitted that there was a consensual relationship between the
victim and the appellant. As far as the allegations are concerned which
are false one. Only the act which can be attributed to the present
appellant that breach of promise of marriage. As far as the intention
since inception is concerned there is no material to infer that
intentionally present appellant has subjected her for sexual assault on
the promise of marriage and subsequently denied to perform the
marriage. He submitted that there can be several reasons for not
performing the marriage. As far as the custodial interrogation concerned
which is not required, and therefore, prays for confirming the
J.55.cri.appeal.298.24.odt 4/7
anticipatory bail granted to the present appellant by order dated
21/05/2024.
6. Learned Additional Public Prosecutor strongly opposed the
appeal on the ground that it is not mere a breach of promise but since
inception there was an intention not to perform the marriage and on the
promise of marriage subjected her for sexual assault, therefore, the
prayer for grant of anticipatory bail deserves to be rejected.
7. Though the victim is served and engaged the Counsel but
her Counsel is not appearing.
8. Heard learned Counsel for the appellant and the learned
Additional Public Prosecutor for the State. Perused the investigation
papers. From the recitals of the First Information Report and the
statement of the victim it reveals that the appellant has proposed her for
marriage. There was a love affair between them and the parents have
also consented for the said marriage. Engagement ceremony was also
performed but subsequently the marriage was not performed. As far as
the allegation regarding the sexual assault is concerned, from the
statement of the victim it appears that since last two years they were in a
relationship and out of that relationship there was a physical
relationship between them. As far as the intention of the present
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appellant is concerned is to be inferred from the circumstances.
Considering that the Engagement ceremony is also performed between
the present appellant and the victim, therefore, the contention of the
prosecution that there was no intention to perform the marriage is not
substantiated.
9. The Honourable Apex Court has dealt with this issue in the
case of Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra &
Ors. in Criminal Appeal No.1443/2018 (Arising Out Of S.L.P. (Criminal)
No.6532 Of 2018) in para number 20 which reads as under:
"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
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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."
10. As far as the bar under Section 18A is concerned now it is
well settled that when the prima facie case is not made out the bar is not
attracted. Considering the fact that there was a consensual relationship
between the present appellant and the victim the appellant has made out
a case to grant him anticipatory bail. In view of that, the interim
protection granted to the appellant vide order dated 21/05/2024
deserves to be confirmed by imposing similar terms and conditions. In
view of above, I proceed to pass the following order :
(i) The appeal is allowed.
(ii) The order dated 30/04/2024 passed by the Additional
Sessions Judge-8 and Special Judge, Scheduled Caste and
Scheduled Tribes (Prevention of Atrocities) Act in Criminal
Bail Application No.1015/2024, is hereby quashed and set
aside.
(iii) In the event of arrest, the appellant - Shri Dhananjay
@ Karan s/o Vilas Hiwarkar in connection with Crime
No.0111/2024 registered with Devalapar Police Station,
J.55.cri.appeal.298.24.odt 7/7
District Nagpur for the offence punishable under Sections
376(2)(n), 506 of IPC read with Section 3(1)(w)(i), 3(1)
(w)(ii), 3(2)(v), 3(2)(va) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities Act), 1989, be
released on anticipatory bail on executing P. R. bond in the
sum of Rs.25,000/- with one solvent surety in the like
amount.
(iv) The appellant shall attend the concerned Police
Station once in a week on Sunday between 10.00 a.m. and
01.00 p.m. and shall cooperate with the investigating
agency, till filing of the charge-sheet.
(v) The appellant shall not induce, threat or promise any
witnesses who are acquainted with the facts of the present
case.
(vi) The contravention of any of the conditions would lead
to cancellation of bail.
11. The appeal is disposed of accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
