Chattisgarh High Court

Vikas Soni vs State Of Chhattisgarh on 15 February, 2023

                                      1

                                                                      NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRA No.1522 of 2022
      Vikas Soni S/o Late Ram Kishan Soni Aged About 41 Years R/o
       House Ho. 716, Trimurti Chowk, Sunder Nagar, Police Station D.D.
       Nagar, Raipur, Tahsil And District Raipur Chhattisgarh., District :
       Raipur, Chhattisgarh
                                                               ---- Appellant

                                   Versus
      State Of Chhattisgarh Through The Station House Officer, Police
       Station , D.D. Nagar, District Raipur Chhattisgarh., District : Raipur,
       Chhattisgarh
                                                           ---- Respondent

(Cause title is taken from C.I.S.)

For Appellant : Shri Lukesh Kumar Mishra along with Shri Anurag Jha, Advocates For Respondent/State : Shri Ayaz Naved, Govt. Advocate For Objector : Smt. M. Asha, Advocate

Single Bench : Hon'ble Shri Justice Sanjay S. Agrawal

C.A.V. Order/Judgment

15/02/2023

1. This appeal has been preferred by the appellant/accused

under Section 14A(2) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (hereinafter referred to as the

"Act of 1989"), questioning the legality and propriety of the Order

dated 13.09.2022 passed by the learned Special Judge (Atrocities

under the Act of 1989) in Special Case No.43 of 2022, whereby the

application filed by the appellant under Section 439 of the Code of

Criminal Procedure, 1973 (hereinafter referred to as the "Cr.P.C.")

has been refused.

2. Case of the prosecution is that in the month of September,

2021, the appellant came in contact with the prosecutrix in order to

carry out the work pertaining to interior decoration and finishing of his

house and the appellant, who is aware that the victim is married

having two children and her husband has left her, therefore, he

stated her that his relation with his wife is not well and wanted to get

divorce from her and want to marry with her (prosecutrix). Further

prosecution story is that the appellant has given his house to the

prosecutrix, which is situated at Agroha Colony, on 17.10.2021 and

that by alluring her on the pretext of marriage, has committed sexual

intercourse with her despite of her resistance and, it was continued

up to 11.03.2022, owing to which, she became pregnant. It is alleged

further that when she insisted for solemnization of marriage, he

refused and instead pressurized her for the abortion and on account

of his immense pressure, she (prosecutrix) has aborted her

pregnancy and thereafter lodged a report on 11.06.2022, while

narrating the entire facts before the Police Station-D.D.Nagar,

Raipur, where the offence punishable under Sections 376, 376(2)(k)

(n), 506, 201 of IPC and also under Section 3(2)(v) of the Act of 1989

has been registered and the appellant was thereafter arrested by the

concerned police on 26.08.2022.

3. Learned counsel appearing for the appellant submits that the

alleged intercourse was done with the consent of the prosecutrix,

who is admittedly a married woman and he never assured her to get

marry and, in fact, she herself has consented for having physical

relations with him without any resistance. It is contended further that

based upon such a false allegation, the appellant has been

implicated in relation to the alleged crime. However, his application

filed under Section 439 of the Cr.P.C. has been rejected by the

concerned trial Court vide impugned order dated 13.09.2022, which

deserves to be set aside as the appellant was innocent and has been

falsely implicated by the prosecutrix in connection with the said crime

while lodging the report on 11.06.2022, after passing of the

considerable period from the date of the commission of the alleged

offence. Further contention of the learned counsel for the appellant is

that since the prosecutrix was a major lady, aged about 38 years and

therefore, she was apparently a consenting party, else the alleged

report would have been lodged by her immediately upon the

commission of alleged offence. In support, he placed his reliance

upon the decision rendered by the Supreme Court in the matter on

Uday vs. State of Karnataka, reported in (2003) 4 SCC 46 and

praying for releasing the appellant on bail by reversing the finding of

the trial Court as made vide order impugned dated 13.09.2022.

4. The prosecutrix appeared through her counsel and raised her

objection regarding grant of bail to the appellant and learned counsel

appearing for the State/respondent, who is assisted by the counsel

for the Objector, while supporting the order impugned, submits that

since the offence, as committed by the appellant, is extremely

serious in nature, therefore, the learned trial Court has rightly

rejected his application for grant of bail and, the appeal is, therefore,

liable to be dismissed.

5. I have heard learned counsel for the parties and perused the

entire case diary carefully, vis-a-vis, the statement of the prosecutrix

recorded before the trial Court.

6. From a perusal of the material placed in the case diary, it

appears that the appellant and the prosecutrix came in contact in the

month of September, 2021, in order to carry out some interior

decoration and finishing work in the appellant's house. It appears

further that a house situated at Agroha Colony was given by the

appellant to the prosecutrix and, on 17.10.2021, the appellant has

committed sexual intercourse with her and which was continued up

to 11.03.2022, owing to which, she became pregnant. It appears

further from a bare perusal of the statement of the prosecutrix that a

mutual deed of compromise was executed between them on

19.04.2022 (Ex.D-7) and, the complaint, which was lodged earlier by

the prosecutrix was withdrawn by her on 20.04.2022 vide Ex.D-3. It

appears further that a complaint case was lodged by the appellant

against the prosecutrix on 31.05.2022 under Section 156(3) of the

Cr.P.C. and immediately thereafter, the alleged report (Ex.P-2) was

lodged by the prosecutrix on 11.06.2022 and based upon which, the

offences mentioned hereinabove have been registered against the

appellant by the concerned police while arresting him on 26.08.2022.

From a perusal of the material placed in the case diary as well as the

evidence led by the prosecutrix, it prima facie appears that the

prosecutrix, who was a major lady, was in continuous relationship

with the appellant for a considerable period of more than 4 and half

months, commencing with effect from 17.10.2021 up to 11.03.2022

and despite of that, the alleged report was lodged belatedly on

11.06.2022. It, thus, appears to be an act of consensual relation,

because there was an affair between them, which ultimately led to

physical relations.

7. At this juncture, the principles laid down by the Supreme Court

in the matter of Uday vs. State of Karnataka (supra), as relied upon

by learned counsel for the appellant is to be seen, where the

appellant and the prosecutrix resided in the same neighbourhood,

but belonged to different castes, owing to which, a matrimonial

relationship could not fructify even while physical relations continued

between them on the understanding and assurance of marriage. In

that factual scenario, it was held by the Supreme Court at

paragraphs 21 and 25, which are relevant for the purpose, read as

under :-

"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

25. .............. 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. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising

from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."

8. In the light of the principles laid down by the Supreme Court

and by considering the materials, as observed hereinabove and that

by considering further the nature of allegation and the relationship of

the parties for the considerable period of more than 4 and half

months coupled with the age of the prosecutrix, without commenting

anything on the merits of the case, I am of the view that this is a fit

case, where the appellant is entitled to be released on bail.

9. Accordingly, the appeal is allowed and the order impugned

dated 13.09.2022 passed by the learned Special Judge (Atrocities),

Raipur in Special Case No.43 of 2022 is hereby set aside and, it is

directed that the appellant shall be released on bail on furnishing a

personal bond in the sum of Rs.1,00,000/- with one local surety for

the like sum to the satisfaction of the concerned trial Court, with the

following conditions :-

a) the appellant shall appear before the concerned trial Court as and when required;

b) 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/her from disclosing such facts to the Court or to any police officer;